Duplication in Functions of Institutions Supporting Democracy: input by Commission for Gender Equality; South African Human Rights Commission; Public Protector; Public Service Commission

This premium content has been made freely available

Justice and Correctional Services

19 August 2014
Chairperson: Mr M Motshekga (ANC) and Ms T Memela (ANC)
Share this page:

Meeting Summary

Four Chapter Nine institutions supporting constitutional democracy - the Commission for Gender Equality, the South African Human Rights Commission, the Public Protector and the Public Service Commission- were called to present on the subject of overlapping mandates, which had been identified during the process leading up to the budget vote.

The Commission for Gender Equality gave a more comprehensive presentation than looking just at overlapping mandates of institutions supporting democracy, covering its legislative functions and strategic plan as well. It identified overlaps with the South African Human Rights Commission on the protection and promotion of gender rights as part of the greater human rights project and in monitoring South Africa's compliance with international agreements. A further overlap was identified with regard to the legislative mandate of the Women's Ministry.

The South African Human Rights Commission detailed examples of the Commission's work to demonstrate its protection, promotion and research mandates. On overlapping mandates, SAHRC's mandate overlaps with institutions such as Office of the Public Protector, CGE, Independent Electoral Commission and Commission for the Promotion and Protection of Cultural, Religious and Linguistic Rights, given their involvement in the overarching sector of human rights. It detailed SAHRC's position on the recommendations of the Kader Asmal Report, saying that there were arguments for the amalgamation of the various institutions under an umbrella organisation - such as the saving of resources and the indivisibility of human rights. This could be countered by the loss of specialisation which would follow such an amalgamation. Ultimately the Commission deferred to Parliament.

The discussion that followed these two presentations focused on the procedure for the tabling of special reports and the need for greater coordination between Parliament and these institutions to ensure that the reports are properly considered by the relevant portfolio committees. The Chairperson committed to taking up this issue in the future. The CGE position on the Kader Asmal Report was also detailed during the discussion. CGE stated that due to South Africa's particular context where colonialism and apartheid had created a deeply unequal society, especially for women, resulted in the need for the continuation of the interconnected network of institutions working towards gender equality in all arms of the government to combat the problem.

The Public Protector, Adv Thuli Madonsela, detailed the Public Protector's constitutional and additional legislative mandate and detailed a matrix of mandatory overlaps with other institutions in the multi-agency anti-corruption architecture, including the Special Investigating Unit, Anti-Corruption Forum and the Hawks. The Public Protector is distinct in that its mandate is founded in the Constitution.

The Public Service Commission presented on the overlaps with the institutions represented at the meeting. One overlap with the Commission for Gender Equality was the promotion and investigation of gender equity issues in the public service. An overlap with the South African Human Rights Commission was the activities of the public service which have an impact on the human rights of people within South Africa. The Public Protector's mandate was said to overlap where there is improper conduct by the public service, however the Public Service Commission has the sole mandate to intervene where no legal infringement has been established.

The discussion focused on the lack of solutions provided for the problem of these overlaps; aside from memoranda of understanding between the institutions involved. Members were interested to know how the work of the Forum of Institutions Supporting Democracy was remedying the situation, particularly the case management system that was being developed. Some Members asked how the reallocation of particular cases and concomitant costs are reported to Parliament, because of budget implications. At the end of the meeting there was a level of tension as Adv Madonsela felt she was not afforded an opportunity to respond to a question on the memorandum of understanding between the Public Protector and the Public Service Commission. She said that the agreement had been renewed while she was Public Protector and explained that the negative experiences that had occurred were due to institutional changes and a reassessment of the Public Service Commission's mandate, leading to certain cases involving the public service causing problems. She stated that the problem at hand was not overlapping mandates in and of themselves, rather it lay in the duplication of work which would not be a problem if the overlap is managed appropriately.

Throughout the meeting the Chairperson continually stated that no decision had been made on the amalgamation of the institutions supporting democracy. All that was being discussed was the stance of the institutions on the overlapping and the recommendations of the Kader Asmal Report. He emphasised that amendment of the Constitution was not necessary or being considered and a decision on a solution would necessarily take into account the views of the institutions themselves.

Meeting report

The meeting was a joint one with the Portfolio Committee on Women.

The Justice Portfolio Committee Chairperson (Mr M Motshekga) said that the during the preparations for the budget debate the interactions with the various institutions lead to challenges being identified on the overlap of functions and mandates of various Chapter Nine institutions, echoing the sentiments of the National Planning Commission. All Chapter Nine institutions have requested more money, but the duplications are inefficient leading to an increased demand for resources. Therefore, the Committee did not want the same presentations as during the budget process. What was pertinent was where the overlaps were and how these can be dealt with.

Mr Mfanozelwe Shozi, Chairperson of the Commission for Gender Equality, said that the Commission for Gender Equality (CGE) had received two letters. One from Chairperson of the Committee on Justice and Correctional Development asking for a presentation on the overlapping mandates and another from Speaker of Parliament asking for a presentation on the CGE's mandate and functions. He therefore said the presentation would be an amalgamation of the two, briefly dealing with the CGE's role and mandate.

Adv Mabedle Lawrence Mushwana, Chairperson of the South African Human Rights Commission, said that the South African Human Rights Commission (SAHRC) had been unaware that a focus on the duplications was what was required, although it is mentioned in its presentation.

The Chairperson accepted this and opened the floor for the briefings.

Commission for Gender Equality (CGE) briefing
Ms Keketso Maema, CGE Chief Executive Officer, said the CGE is a constitutional body with its mandate located in section 187 of the Constitution: to protect and promote the attainment of gender equality. The CGE has been given additional powers through the Commission for Gender Equality Act 39 of 1996. Looking at the CGE Act, the work of the CGE can be broken down into eight aspects including: monitoring and evaluation; research; investigation; mediation, conciliation and litigation; educating the public; and lobbying Parliament to be aware of gender related issues. The CGE also has the power and duty under the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 to institute court proceedings on behalf of any aggrieved person or group and may have the matter referred back to it by the presiding officer.

Ms Maema said that the CGE is in its third year of the Strategic Plan for the period 2010/2015. The focus for this year is on the improvement of the monitoring and evaluation framework for gender equality. The vision of the CGE has remained the attainment of a society free from all forms of gender oppression and inequality throughout the period of the strategic plan. In pursuit of this mission the CGE has operationalised its mandate. However, gender inequality persists as demonstrated by the feminized nature of poverty, high levels of female unemployment, high levels of gender based violence and the underrepresentation of women in decision making. Weaknesses in the CGE's approach include problems with the implementation of enabling policy, difficulties in achieving gender responsive budgeting, the slow pace of gender mainstreaming in the private and public sector. Further challenges are the difficulty in elimination of gender based violence, slow transformation of the workplace and the implementation of obligations arising out of international and regional conventions.

Commissioners oversight committees include legal and complaints, research and education; strategic planning, annual report and monitoring and evaluation; finance; and audit, which is chaired externally. The CGE also has committees established in terms of section 6 of the Act which are include experts and are divided along the following areas: substantive equality, economic empowerment; culture, religion and tradition; gender equality and health; gender based violence and the national gender machinery . The above committees advise the CGE allowing it to know what to focus on in their Strategic Plan and Annual Performance Plan.

Ms Maema said that the CGE's organisational structure is made up of an average of 100 employees. It is divided along three line functions, legal services, policy and research and public education and information, forming its core operations. These are supported by four further divisions: finance, human resources, information communications technology and Communications. The CGE has a country wide footprint with nine provincial offices staffed by six officials per office; a head, two line function officers and interns and three support staff. The head office houses the secretariat and the remainder of the line function and support staff.

She went on to say that the CGE has four strategic objectives with corresponding outcomes and sub-strategies for their realisation. The first is ensuring the creation and implementation of an enabling legislative framework that promotes gender equality; with its outcome being continuous improvements in legislation and practices to advance gender equality. Sub-strategies here include: monitoring and evaluating policies and practices which affect the promotion of gender equality in both the public and private sectors and tabling recommendations in Parliament with the aid of the South African Law Reform Commission. The second strategic objective is the protection and promotion of gender rights by taking action against infringements of gender rights through appropriate redress, while also engaging with relevant stakeholders to raise awareness about gender issues and challenge patriarchal perceptions. The outcome here is a society educated in constitutional rights to gender equality that demonstrates transformative behaviour by upholding gender equality and also ensuring the effective and efficient social justice for the victims of gender related violations. Sub-strategies in this regard include: timeous investigation of complaints of violation and the identification of appropriate redress, the initiations of investigations of systemic violations by either the private or public sector and the identification of appropriate redress; and collaboration with organs of state, civil society and other institutions for the development, protection and promotion of gender equality. The third strategic objective is the monitoring of state compliance with regional and international instruments which have been acceded to or ratified by the Republic which are within the scope of the CGE; with the outcome being the assessment of the compliance levels with gender related instruments and the tabling of recommendations in Parliament. Sub-strategies in this respect are the conducting of annual audits and reviews of state compliance which will be regularly reported to Parliament and the interaction and reporting of the South African government's compliance to national, regional and international bodies regarding South Africa's compliance with international obligations. The final strategic objective is the building of effective, efficient, visible and sustainable institution capable of fulfilling its constitutional mandate. Here sub-strategies include: the development of a financial management strategy, information communication technology infrastructure and comprehensive human resources policies and procedures.

Key achievements under the monitoring and evaluation function include the compiling of the National Gender Barometer Report on the status of gender policies and practices in the public and private sectors, reporting on the findings of the Assessment of Women In political Participation and Representation and the holding of several Ukhutwala consultations which have enabled the CGE's participation as amicus curiae in Constitutional Court case Mayelane v Ngenyama and another. In terms of its investigation and complaints the CGE's achievements include the several landmark cases in various courts above High Court level. Ms Maema also said that the CGE has had dialogues and interactions of varying forms with communities, traditional leaders and other stakeholders on gender related matters such as virginity testing, gender based violence and human trafficking; an example being the rescue of victims of forced marriages in collaboration with a government in Mpumalanga and Kwa-Zulu Natal.

Ms Maema then said the CGE had been requested to highlight issues it was facing in its work and said that funding was a significant concern, specifically in terms of its legislative mandate relating to PEPUDA which has not been funded since its inception. A further issue that faced the CGE is the poor responses to the CGE's efforts to monitor and evaluate state institutions on compliance with international obligations and engagement on gender policies and practices, which is also problem in the private sector. Lastly, that the CGE submitted reports and recommendations to Parliament but seldom engaged with afterwards, however the CGE has taken the stance that when it conducts investigations and research it will draft policy briefs to distribute at its dialogues which has seen some success.

Finally, Ms Maema spoke to a matrix on the mandate overlaps which illustrate the possible areas of overlap with other Institutions Supporting Democracy. Regarding the CGE's core mandate of promoting gender equality and women's empowerment, it is shared with the Women's Ministry and as women's rights form part of the broader stable of human rights, there is an overlap with SAHRC, particularly relating to litigation and investigation, although the CGE does engage with the SAHRC to ensure there is cooperation rather than duplication. There is also potential for overlap under the monitoring of compliance mandate international instruments with the Women's Ministry and the SAHRC. However, the CGE's reports in this respect will be independent and provide a double-check for what the Women's Ministry as part of government has reported. The SAHRC also deals with compliance, however they do not deal with the women specific instruments such as the Beijing Declaration and Platform for Action and Convention for the Elimination of all forms of Discrimination against Women (CEDAW). She also said that the CGE engages in fora with other ISDs such as the Forum for Institutions Supporting Democracy (FISD) and concludes Memoranda of Understanding (MOU) with other relevant institutions in order to coordinate efforts; specifically mentioning a MOU with the SAHRC and a practical collaboration with the Office of the Public Protector in Kimberly where office space is shared with the CGE on an ad hoc basis.

The Co-Chairperson clarified that the Women's Ministry is in existence, although relocated to the Presidency with Chapter 8 being retained until the transition is over and also appreciated the understanding of its mandate as demonstrated.

South African Human Rights Commission (SAHRC) briefing
Mr Kayum Ahmed, SAHRC Chief Executive Officer, said he had modified the presentation significantly to gear it towards the comments of the Chairperson at the beginning of the meeting, particularly about the Kader Asmal Report. He started by outlining the core constitutional mandate of the South African Human Rights Commission which is to protect, promote and conduct research into human rights. He then spoke of examples of the work done by the SAHRC to demonstrate the various aspects of its mandates. He mentioned the University of Free State case, where white students had taken a video of black university employees performing humiliating and degrading acts, and said that here the SAHRC had held a reconciliation ceremony which resulted in the signing of an agreement between the students, the University and employees; and this is an example of the Commissions protection work. He then said that an example of the promotion mandate of the Commission are the public hearings on water and sanitation across the country during the course of 2012 and 2013. In term of its research mandate the Commission has compiled a charter on children's basic education rights, which has been hailed by UNICEF as the most comprehensive charter of its kind and this has been tabled in Parliament.

Mr Ahmed said that the SAHRC's organisational structure consists of 178 people, spread over ten offices, nine provincial and one head. The SAHRC is divided into three programmes which span its mandate and these are research, human rights advocacy and legal services. The Commissioners are the executive authorities who have appointed the CEO. There are seven Commissioners, five permanent and two part time, and each of the Commissioners has a specific focus area in terms of a cluster of rights, a province and a UN treaty to cover. For example Commissioner L Mokate focuses on basic education and children's rights, Kwa-Zulu Natal and the Convention on the Rights of the Child.

Mr Ahmed said that the vision of the SAHRC is transforming society, securing rights and restoring dignity. He turned to an overview of strategic plan 2014 to 2017 is now focused on the promotion mandate by educating people about the Bill of Rights, the Constitution and the mandate of the SAHRC; especially in rural and peri-urban areas. This is a change from the focus on the Commission's protection mandate in the previous strategic cycle, which saw large amounts of resources being channeled into the provincial office in order to ensure the capacity to deal with the high number of cases that come to the SAHRC.

Mr Ahmed moved onto the mandates shared with other constitutional bodies such as the Office of the Public Protector, CGE, Independent Electoral Commission and Commission for the Promotion and Protection of Cultural, Religious and Linguistic Rights (CLR). Mr Ahmed said that the SAHRC has a collaborative relationship with the above ISDs, where for example the CGE accompanied the Commission on the water and sanitation public hearings, so that it could participate and explain the nuances of its mandate to the communities. He then said that the SAHRC has a system for the referral of cases to the proper institutions, which caters for the situation where in the course of its work the Commission comes across a rights violation with an element of maladministration or corruption, for example, this would be forwarded to the Office of the Public Protector. However, this system is not perfect, allowing people to forum shop by lodging a complaint in several institutions. Towards solving this the FISD aims to create a single entry point for complaints to then be fed to the relevant institution, although this is still in a putative stage. Lastly, he said that these ISDs were collaborating on the 20 years of constitutional democracy project which aims to have the Chapter Nine and Ten institutions to celebrate this in a collaborative manner.

Turning to the SAHRC's position on the Kader Asmal Report, he said that the SAHRC has submitted a comprehensive report on its views on the Asmal Report in June 2014, containing views on the most relevant recommendations for the SAHRC, mainly that it ought to move towards a position where it is capable of subsuming the protection and promotion mandate of all human rights under a single institution. The SAHRC submitted that there are two lines of argument for the amalgamation of human rights institutions. First is the indivisibility of human rights and the general trend towards having a single human rights institutions. This can be contrasted with the Kenyan example, which tends to show that a multitude of organisations are better able to more comprehensively protect rights. Secondly, there is a practical resource perspective amalgamation may be said to have cost saving benefits. Despite the above, amalgamation, may come at the cost of the specialisation which has grown within the various institutions and which could be useful where certain rights require more attention than others in a particular context. He also said that the Office of the High Commissioner on Human Rights only recognises one human rights institution per country and the SAHRC is currently vested with an 'A-status', but the Commission has worked with ISDs like the CGE to enable it to report more accurately on things such as CEDAW. He said that ultimately the SAHRC defers to Parliament on the issue of amalgamation, because it is best places to weigh up the challenges and benefits that accompany it.

Mr Ahmed concluded by referring to some issues facing the SAHRC which include the levels of responsiveness of state institutions to the SAHRC's requests for information and implementation of its recommendations. Although an initiative for Chapter Nine Institutions to submit information to the Presidency was initiated this has not improved compliance by government. Continued challenges regarding the ratification, domestication and reporting on international and regional human rights instruments. In this regard meetings with the government departments have born little fruit and there continue to be instances where South Africa is several years late in submitting reports to international bodies.

Mr M Dirks (ANC) wanted to know which specific state departments were presenting issues for the SAHRC which were causing international embarrassment by not producing reports required by international instruments.

Mr Ahmed said that specifically it was the Department of International Relations and Cooperation; but also government departments which were responsible for more specific reporting such as the Department of Social Development which is meant to report on children's rights and the Department of Justice which is meant to report on the African Commission. This is why he referred to government collectively.

The Chairperson said that this raises the issue of oversight, because the Committee is responsible for overseeing government departments, yet it must be made aware of the failings of government in order to act.

Ms Pregaluxmi Govender (SAHRC Deputy Chairperson) added that Parliament is regularly presented with reports detailing the failure of government to submit these reports or comply with things like the Promotion of Access to Information Act of 2000 by the SAHRC and other Chapter Nine institutions. Therefore, as Parliament has these reports it is then for it to exercise its oversight powers.

The Chairperson said that Parliament delegates work to its committees and although it is necessary to submit the reports to the Speaker of Parliament, it is important for the chairpersons of the committees to be sent copies as well, because it is them who take the information to the house and move the issue forward.

Ms Govender agreed with the Chairperson and said that there are times where SAHRC has sent its reports to committee chairs, but will ensure this happens in the future.

Mr Dirks said that also serves on the Committee for Public Services and Administration Evaluation and Monitoring, because the issue of reports under international instruments was not raised in that forum and this raises a question about the consistency of the various commissions.

Adv Mushwana said in terms of constitutional process the SAHRC reports directly to Parliament at the end of every year the SAHRC submits a section 1863(4) report which details governments involvement in human rights for that year. Also, the Constitution and Act are specific about the reports being submitted to Parliament generally, rather than the particular Committees; however he said that the SAHRC was amenable to following the alternative route if the results would be better.

Ms Maema said that the modus operandi of the CGE has been to submit all reports, annual and specific, to both the Speaker of Parliament and the relevant committees, later being discussed with the particular Portfolio Committees. The experience is that despite this there is a lack of coordination in government departments resulting in the non-submissions, however the Department of Justice and Correctional Services specifically has drafted a timetable for the submissions of its reports to the relevant bodies.

Mr M Maila (ANC) said that the problem evidently lay in coordination and his proposal is that Parliament is given a clear programme of what reports need to be submitted by whom and by when, so that parliament may properly conduct oversight.

Ms M Chueu (ANC) said that what is important is for the people who actually conduct the oversight over the government departments, i.e. portfolio committees, although the Speaker is the centre of Parliament. She also said that this was important so that the ISDs and the government to have a common position when abroad, because it causes embarrassment when people from the same country adopt polar positions and this includes opposition parties as well as the various ISDs.

Ms Pilane-Majake (ANC) asked for the CGE's input on the Kader Asmal Report. She also wanted to know about the progress being made regarding gender mainstreaming particularly in the public sector as determined by the CGE's monitoring. Ms Pilane-Majake said that both institutions have indicated a lack of funds, yet they are overlaps in their mandates which have implications for the fiscus of the country and the use of the limited pool of funds needs to be optimised. She also said that there was a duplication of functions relating to legislation regarding women's rights with the Women's Ministry, but she would have assumed the Women's Ministry would be drafting the legislation and the CGE monitoring the effects and asked for this to be clarified. The CGE had also said that there is no duplication with the CLR, but surely there must be especially in terms of combating harmful cultural practices. The CGE had also said that there was minimal duplication with the SAHRC regarding the monitoring of compliance, although women's rights form part of the broader scheme of human rights for which the SAHRC is responsible. She also expressed concern about the monitoring of compliance with international obligations, especially regarding reporting and glad this was raised and thinks it needs to be taken forward.

Ms D Robinson (DA) also spoke about the issue of coordination raised earlier and perhaps part the problem is Members being inundated with paperwork leading to the reports not being read. She also referred to the need for South Africa to speak with one voice when abroad and made an appeal for opposition members to be briefed when they are to go on international delegations, so as to avoid such Members being given documents immediately before meetings. She also said that she was aware that some portfolio committees did not have managing committees with opposition representation, because this could enhance coordination in the fundamental common mission of human rights.

The Chairperson agreed with the above sentiments saying that South Africa is a multi-party democracy and in this important area of human rights, all the parties ought to be represented.

Mr W Horn (DA) said that he wanted to add to the request by Ms Pilane-Majake for the CGE's position on the Kader Asmal Report and further on the desirability of an amalgamation of the CGE and SAHRC.

Ms C Dudley (ACDP) spoke about the tabling procedure for annual, strategic and special reports from various ISDs with Parliament. She said that reports are submitted by way of a letter of the head of the particular ISD to the Speaker of Parliament and this will be reflected in the ATC which serves as a record of the submission. After this a further formal procedure follows, where the report is then referred and there are three ways in which a report may be referred: a mere referral, a referral for consideration or a referral for consideration and report. The problem comes in with many special reports, as these reports are often only submitted for consideration, rather than for consideration and reporting.

The Chairperson agreed with Ms Dudley saying that this procedure needs to be used to ensure that the relevant Members receive and review the reports so that they may perform proper oversight. Ms Dudley had said that in their work they have to respect the law and the Constitution. He said that this raises the question of what exactly is the law, as few legally trained people have studied African law or Hindu law; therefore there is a concern that where human rights are taught to people, this may be accompanied by the teaching of European culture and values which is to the detriment of indigenous values, even to the point where these values are seen as repugnant to the Constitution. He said that this raises the issue of how law is taught, which ought to be taken up in the future. He was also concerned that what is most often referred to are UN based international instruments and there is little mention of regional instruments, such as the Convention on the Rights of the African Child. He then declared a break for tea.

Upon re-opening the discussion, the Chairperson said that the Constitution is not under-attack and that there may be confusion among some Members who misinterpret the Constitution. Further, that the ISDs could help not only by continuing their monitoring and evaluation efforts, but also by educating people about the meaning of the Constitution, lest there be so many varied interpretations that no one knows the true meaning of the Constitution.

Ms Janet Love, SAHRC Commissioner, said that the issue of how the special reports are tabled and followed up, should be engaged with because it is clear that all parties are seeking a more effective solution that caters to everyone's needs. Regarding the country speaking with one voice she said that it is clearly positive for the country to be represented in a coordinated fashion, however the SAHRC own mandate and that derived as a UN recognised human rights institution requires it to be viewed as independent body locally and internationally to uphold the respect with which South Africa and the SAHRC is viewed with in the human rights sector; and perhaps in future Committee Members ought to be engaged by the SAHRC in order to foster an understanding of this to be taken out internationally and especially to the African Commission. Her final point was that every Commissioner has indicated areas of focus and these do not only relate to instruments of the UN, but also those of the African Commission and to an extent those of the African Union; as reflected in the SAHRC's reports.

The Chairperson replied that Parliament has a responsibility to protect and promote the independence of the Chapter Nine institutions as a matter of law, particularly the Constitution.

Mr Mfanozelwe Shozi, Chairperson of the Commission for Gender Equality, said that in the invitation the CGE had not been asked to deal with the Kader Asmal Report or the amalgamation of the CGE with any other institution, but accepted that it was Parliamentary prerogative to consider the Asmal Report. He continued by saying that the CGE had made submissions to the Fourth Parliament and is preparing to brief the Joint Committee. He wanted to put on record that the CGE is opposed to the amalgamation of the CGE with any other institution and Ms Jenine Hicks would speak further on this point.

The Chairperson said that no decision on the amalgamation of ISDs has been made and what he was seeking was information on the ISDs stances on the Kader Asmal Report, because the Committee has not had a chance to interact with that document. Further, that any decision taken will have to be a product of this engagement and that it cannot be made solely by Parliament, but rather must be taken together with the relevant ISDs.

Ms Lindiwe Mokate, SAHRC Commissioner, said that the manner in which the submission of reports is to be achieved with the assistance of the Committee, because looking at the fairly broad mandate of the SAHRC, yet it only reports to the Portfolio Committee on Justice and Correctional Services. Further, that at present there is no system for immediate transfer of reports to the relevant committees, for example where research is done into access to healthcare this need to be directed to the Portfolio Committee on Health, and with the assistance of the Committee the reports could find their way to the appropriate committees.

The Chairperson said that there ought to be a distinction between the formal submission of reports to the Speaker for inclusion in the ATC and informal referral to chairperson of the relevant committee. Towards this end he felt that there should be a dynamic relationship between heads of ISDs and the chairpersons of the committees relevant to their work, so that communication does not depend upon a third party or the ATC.

Ms Janine Hicks, CGE Commissioner, replied to Ms Pilane-Majake saying that there is indeed no overlap in the development of legislation with the Women's Ministry as this is the role of the executive, but there is an overlap in the determination of the need for new legislation and the reform of legislation to bring it in line with constitutional and other obligations. Further that the CGE is involved in monitoring the implementation of legislation, all of which is legitimate terrain for an independent constitutional body. Regarding the amalgamation question, she said it is that the starting point is accepting that women's rights are human rights, however there is a particular nuance in South Africa, where a combination of repression under colonialism and apartheid has created a situation where South African women face a deeply embedded inequality in society. This was engaged with in the pre-constitutional negotiations which lead to the construction of the national gender equality machinery, which is an interconnected approach to this problem which comprised of the executive element to drive policy; the independent aspect to monitor and report; and the parliamentary aspect to conduct oversight. The CGE's research into practices internationally and in the Continent have shown that South Africa's comprehensive approach has lead to it being used as an example in African countries like Zimbabwe and Kenya. Although there has been a past trend to subsume gender institutions under a generic human rights institutions and the CGE has found by monitoring the impact this has had on gender equality project in European countries which adopted this approach, that this has lead to gender becoming the 'step child' of the generic institution and gender becoming a second class issue. The CGE therefore argues that amalgamation would be premature in the South African context and that the interconnected approach is far more effective in driving the gender agenda.

The Chairperson said that as ISDs are mandated to support constitutional democracy, where they conduct valuable research and it is not shared with Parliament their work could be seen as an exercise in futility. He also said that looking at the Kader Asmal Report one sees the work of the CRL disappearing, which is problematic in a country where 80% of the population is religious or spiritual.

Ms M Mahlobo (ANC) speaking in isiXhosa and isiZulu greeted Committee members, commenting that what was good about the work of the Portfolio Committee was that it focused on the oppressed in SA, because gender equality issues were such a challenge. Even with the focus on widows; one would still find that there were women who when their husband died, would lose their homes. The home would be put up for sale while occupied and when those widows went to the department that was supposed to protecting them; they would get no such support and relief. Arranged and forced marriages was another issue because even though it was called a "tradition", she did not even know how it had originated. To be fair, it was abuse. Most of the traditions and religions that citizens followed were brought to them by foreigners, whilst the indigenous beliefs were discouraged and downtrodden. She asked that foreign faiths should please accept and understand indigenous beliefs as well. In terms of human rights, a black child wearing full uniform was allowed to use unhygienic water and unhygienic toilets, whilst there were human rights institutions in existence. What had these institutions been established for if not to be accessed by everyone? A black mother was simply not valued in SA.

Ms Mahlobo requested that the committee do oversight so that they could understand the situations from which women were coming, because some Members simply did not appreciate the plight of black women in SA. Moreover she would have liked to see the chairperson in traditional attire so that as citizens, they could appreciate that even one's leaders identified with the voters. She had also asked herself why indigenous languages were dying in South Africa and a premium was being placed on learning foreign languages.
Ms Mahlobo pleaded with Members of Parliament to fight for citizens rights. They needed to come and see for themselves that South Africans were still very much oppressed, whilst foreigners were more valued.
The Chairperson re-iterated the above points saying that when the President opened the National Summit on Social Cohesion and Nation Building he said there are three streams of culture and history in South Africa, the African, European and Asian Cultures; therefore the Constitution recognises our unity in diversity. Therefore is we understand only one stream of history and culture, then we cannot do justice to the country, therefore the African stream needs to be brought into the mainstream, otherwise the oppression of African people will continue. He also said that Ms Matshoba had said that there is a need for Parliament to deal with the issues of the remnants of apartheid from the ground and not from their offices, because the overseeing of transformation and service delivery is the primary work of Parliament. As there are parliamentary constituency offices, not everything needs to be investigated by ISDs, because if everything is subject to investigation by ISDs then Parliament is superfluous and at times urgency requires prompt intervention rather than mere investigation. He therefore hoped that a healthy working relationship between the ISDs and Parliament.

Public Protector briefing
Ms Thuli Madonsela, Public Protector, began with a quote from former President Nelson Mandela, which warned of the dangers of a government which was neither transparent nor accountable and stated that the Constitution aims to ensure that government is part of the solution; to this end the Public Protector is not only critical for good governance, but is central to the transformation of the public service by rooting out arrogance, secrecy and corruption.

She then said that the focus will be on the overlaps, but said that the mandate and role of the Office of the Public Protector (OPP) will also be covered. She also wanted to locate the dialogue in chapter 14 of the National Development Plan titled 'Promoting Accountability and Fighting Corruption', as it endorses a multi-agency anti-corruption system comprising, inter alia, the Special Investigating Unit, Public Service Commission and the Hawks. She noted that the approach taken by the NDP is consistent with the Kader Asmal report and the Supreme Court of Appeal in the Public Protector v Mail and Guardian, to the effect that the OPP is critical to the pursuit of good governance. The Office of the Public Protector sees itself as firstly an institution supporting good governance which is part of the multi-agency anticorruption network, rather than a human rights body such as the CGE or SAHRC. She also said that the OPP understands that oversight is principally the terrain of Parliament and that ISDs are meant to support Parliament in the exercise of this function.

The OPP's mandate is principally found in section 182 of the Constitution which non-exhaustively entails that the OPP is empowered, as regulated by national legislation, to investigate any alleged improper conduct of state affairs in any sphere of government, to report on this conduct and to take appropriate remedial action; however the OPP may not investigate court decisions. This means that the OPP's mandate spans all organs of state, at all three levels and any report of the OPP must be accessible to the public, unless exceptional circumstances prevail. Section 182 (4) requires the OPP's services to be universally accessible. However, the OPP continually uses the multi-agency oversight architecture to refer service requests and complaints, where this is appropriate, in light of the need to appropriately use limited resources while ensuring that justice is done where administrative wrongs have been committed. This exercise is guided by the principles of accessibility, integrity and responsiveness to the needs of the people in order to ensure the protection of people's right to complain and receive redress for maladministration, which springs from the Constitution.

Turning to the important statutory mandates Adv Madonsela highlighted the Public Protector Act 23 of 1994, which provides for the OPP's core mandate which is the investigation and remedying of maladministration and corruption and empowers the OPP to investigate and making findings on any instance of maladministration. She also noted that the OPP has the sole mandate to enforce the Executive Members' Ethics Act 82 of 1998. As the Committee had been briefed on the details of the statutory mandates of the OPP on 4 July 2014, this was not covered.

She said that the overlaps in mandates are shared will all other institutions operating in the multi-agency anticorruption network, because of the nature of the work. She then indicated that the OPP managed overlaps through MOUs with other ISDs, parastatal institutions such as the Inspector-General of Intelligence, which has enabled more efficient referrals on cases to the appropriate institution. There is also the Forum on Good Governance, established in 2010, and convened by the OPP and the Commonwealth. Adv Madonsela asked the Members to look at the report of this Forum as all of the oversight bodies, including Chapter Nine institutions, parastatals and parliamentary committees, collaborated to produce a document dealing with the overlapping mandates. She also said that the FISD was another means for dealing with overlaps as it facilitated referrals.

Adv Madonsela then wanted to debunk myths about the OPP's case load, because it has concluded MOUs resulting in the OPP not dealing with cases regarding prisons, police, military, intelligence and the public service, as there are more specialised bodies for these cases. The OPP has also worked to encourage the development of internal complaints structures in government such as the Military Ombuds. The shift in the work load is evidenced by the previous annual reports of the OPP which show a decrease in the number of cases where the problem was systemic, such as Unemployment Insurance Fund cases, and the drastic decrease of cases in the areas where MOUs lead to referrals.

Adv Madonsela concluded by detailing a matrix of overlaps similar to that of the CGE. She said that the triaging process followed by the OPP is that when a complain comes in the OPP first establishes jurisdiction, it then determines whether there is an institution better suited to deal with the matter and if not only then is the case accepted. The matrix depicts that there are overlaps in terms of employment irregularities with the Public Service Commission, the Military Ombuds, Inspector General of Intelligence, Independent Police Directorate and Auditor General. Regarding procurement irregularities there are overlaps with the Auditor General, Inspector General of Intelligence, the Special Investigating Unit, Anti-Corruption Forum and the Hawks. In respect of ethical violations the OPP has the sole mandate in terms of the Executive Members Ethics Act ; outside of the executive the mandate is shared with the Public Service Commission, Auditor General, the Inspector-General of Intelligence and the Special Investigating Unit among others. Regarding allegations of corruption and malfeasance the mandate is shared with the Special Investigating Unit, South African Police Service, the Hawks, Inspector-General of Intelligence and Anti-Corruption Forum. When a protected disclosure is made only the OPP and Auditor General are empowered, although the NDP says that more institutions should be given this status. In respect of access to information this is currently shared with the .SAHRC, but it will be taken over by the Information Regulator, once established. Regarding unfair discrimination matters, the OPP does not generally investigate these, but they are investigated when there is a public service issue with an unfair discrimination element and in this case the mandate is shared with the SAHRC, CGE and Public Service Commission. Where there are complaints of maladministration impacting on socio-economic rights, there is an overlap with the SAHRC and CGE. Lastly, in cases of police brutality and misconduct the mandate is shared with the Independent Police Investigations Directorate.

Adv Kevin Malunga, Deputy Public Protector, added that the OPP is an active member of the FISD and he raises this because he was concerned that the work of the FISD has not been brought to the attention of the Committee. He said that the FISD comprises the Chairs and executive management of the various ISDs and they meet to discuss the same problems as those on the present agenda. He also said that the FISD has created a draft complaints handling procedure, which is aimed at having a single entry point for complainants which will eliminate duplications and forum shopping. He also raised the issue of the interactions with the Office of the Speaker and communication with the Portfolio Committee which was raised earlier.

The Chairperson agreed with Adv Malunga sentiments that the communication between Chapter Nine institutions and Parliament was sub-optimal and said this will be engaged with. The Chairperson then thanked the OPP for its input, because of the representations in the press to the effect that the Committee wishes to clip the wings of the Public Protector. He therefore wanted to place on record that Parliament had drafted a Constitution which included Chapter Nine institutions and he wanted to emphasise the continued commitment to all these institutions. Further, that this engagement is to deal with an issue identified by the Chapter Nine institutions themselves, namely the overlapping mandates which lead to duplications in the work of these institutions, which has an implication for the fiscus. Lastly, he said that this is a practical matter and the clipping of nobody's wings is on the agenda and that the Committee supports the Chapter Nine institutions, as they are charged with the important work of supporting constitutional democracy.

Public Service Commission (PSC) briefing
Mr Ben Mthembu, PSC Chairperson, introduced the Public Service Commission saying it is established in terms of Chapter 10 of the Constitution, specifically sections 195 and 196. This is the only body with its core mandate having an oversight, promotional, investigative and directional role over the public service.

He then turned to a brief overview of the PSC's mandate, starting with its vision, which is to be a champion of public service excellence in democratic governance in South Africa. Its Mission is to promote the constitutionally enshrined values and principles throughout the public service by investigating, monitoring, evaluating, advising and reporting on this. The PSC's Legislative mandate is founded on section 196 (4) of the Constitution which entails the promotion of constitutional values and principles in the public service; investigating, monitoring and evaluating the organisation and administration, and personnel practices in the public service; and lastly to propose measures to ensure effective and efficient performance within the public service in line with the values set out in section 195 of the Constitution. The PSC also reports to the National and Provincial legislatures on activities within its scope. The PSC is also empowered to of its own accord or upon reception of a complaint, investigate grievances of employees in the public service and make appropriate recommendations; monitor and investigate adherence to applicable procedures in the public service; and advise organs of state on personnel practices.

The PSC consists of 14 members, 9 who are nominated by provincial premiers as recommended by the Provincial Legislatures and 5 members nominated by the National Assembly. The President appoints all the Commissioners and designates one of them as the chairperson and another as deputy chairperson.

He then turned to identifying potential areas of duplication between the PSC and the OPP, CGE and SAHRC. Regarding the OPP he said that comparing sections 182 (1) (a) and 196 (4) (b) and (f) it is clear that both institutions both have a mandate in terms of investigating complaints regarding improper conduct by the public service. The difference lies in the fact that the OPP focuses on alleged malfeasance and corruption, while the PSC focuses on organisational, administrative and personnel practices in the public service. This leads to the PSC being enabled to investigate and make findings where no legal infringement has been found, allowing it to make recommendations on these matters. As an overlapping investigative mandate was identified, an MOU was signed between the two in order to coordinate their activities, avoid duplication and . He also pointed out that this MOU is under review in order to enhance its effectiveness, in light of the experiences since 2002.

The Chairperson interjected asking what these experiences have been.

Mr Mthembu replied that this will be addressed at the appropriate time.

Turning to overlaps with the CGE, Mr Mthembu said that the CGE is charged with promoting and protecting gender equality generally and that the PSC must promote a public administration which is broadly representative of South Africa and which embodies the values of the Constitution and that both institutions are empowered to investigate these matters. Therefore, there is the potential for an overlap where gender equity is of concern in the operations of the public service.

Lastly, regarding the SAHRC Mr Mthembu said that the SAHRC is empowered to investigate and report on the observance of human rights and take steps towards ensuring appropriate redress where violations are found, in terms of section 184 (2) of the Constitution. This results in the SAHRC sharing mandatory terrain with the PSC in respect of the public service, where it is charged with upholding constitutional values including human rights. The overlap is seen particularly regarding the evaluation of the implementation of and compliance with legislation and policies, for example the Promotion of Access to Information Act of 2000. A further aspect is where people's rights are affected by service delivery related acts by the public service and there have been instances where cases have been referred to the SAHRC to avoid duplication.

Mr Mthembu concluded by saying that the major areas of overlap with other ISDs are in terms of the PSC's investigative mandate and promotional work, however the difference lies in the focus of the PSC being the public service while other ISDs deal with society as a whole, including the public service. In order to avoid the negative implications of the duplications the overlaps in the powers and functions of the various institutions need to be properly managed. A potential solution lies in formal and formal strategic engagement and partnerships, through avenues such as the FISD, which is a platform for such cooperation and has produced initiatives such as the case management system.

The Chairperson reminded Mr Mthembu that he had said he would address the experiences which the PSC had experienced with the OPP and also wanted to know whether the MOU was working effectively.

Mr Mthembu replied that there had been both positive and negative experiences. Further, he said that the long period of time since the MOU was concluded has seen changes in both institutions, such as a refocusing of the PSC's mandate and institutional re-organisation, which were not foreseen at the time of conclusion. However, positive aspects include the sharing of information between the PSC and the OPP and there is a reciprocal referral of complaints originating from the public relating to the public service and those arising from members of the public service. Overall, the MOU has worked, although there are practical challenges which have lead to the review of the MOU.

The Chairperson then commented that it seems premature to speak of the need for additional resources for the ISDs, before the potential for cost saving has been fully explored. He therefore felt that these issues need to be addressed urgently, to avoid the situation where several institutions are dealing the same work, from different perspectives, which at times will miss the true issue at hand. He said that this was important because of South Africa's limited resources and the pressing need to address the backlog of apartheid.

The Co-chairperson wanted to know about timeframes for the review of MOUs, because she was concerned that only after so many years the MOU between the OPP and PSC is being reviewed.

Ms Mahlobo commented in isiXhosa and isiZulu that there was a recurrent challenge with the Manase investigation into the affairs of the eThekwini Municipality that surfaced and after a while disappeared. When would that issue be concluded because the people who had been charged with looking after the welfare of South Africans had been doing the opposite? What was Parliament saying about the plight of women in SA, children using unhygienic water and havening under par sanitation systems, and RDP houses being sold? How was Parliament assisting those communities which were not getting development and service delivery because they had not voted for a particular political party? People found guilty of maladministration needed to be jailed because when media reported on fraud and corruption; the state needed to stop protecting those individuals and letting those reports just die out without any remedial action. She pleaded with Parliament to see to the conclusion of all the matters she had raised because when she had to report back to her constituency she had to have tangible answers. Municipalities really had to be shaken up.

Mr M Dirks (ANC) said that Chapter Nine always stress their independence and agreed with the Chairperson's comment that Parliament will protect this independence. He therefore appealed these institutions must understand that Parliament also has to play its oversight role without hindrance and this must not be confused with political interference.

The Chairperson commented that this is why he spoke earlier about challenges relating to the interpretation of the Constitution, because it states that Chapter Nine institutions are independent and autonomous, yet they are still accountable to Parliament and an overemphasis of one or the other will lead to a distortion of the text. However, Parliament will not diminish the independence of these institutions and at the same time Parliament will not shy away from its right to have these institutions account.

Mr W Horn (DA) requested the Chairperson to have the Forum for Good Governance table the report or minutes from the two day meeting. Further, the FISD institutions have spoken about the draft complaints handling procedures, yet none of them have spoken about the success of this and whether amendment of the mandatory jurisdiction would not serve this purpose better for dealing with duplications. He also said that the response from the PSC about the overlaps with the OPP created more questions, because delineating who deals with the complaint based on whether it arises from the broader public or from the public service is invalid. Particularly, because a duplication can arise out of the same set of facts where two different parties complain to the relevant institution. Lastly, he highlighted that the PSC is a Chapter 10 institution, while the OPP is a Chapter Nine institution and therefore one should be wary of isolating the OPP from complaints relating to the public service.

The Chairperson said that he was unsure that issue lay in isolating the OPP, rather it was the avoidance of duplications. Also, that there is a need to differentiate between the Forum for Good Governance and the FISD, because the prior contains the Commonwealth and there is also a duplication here because Parliament has a Commonwealth Parliamentary Association and this needs to be looked into. However, for present purposes the important forum is the FISD, where the Speaker of Parliament is represented.

Ms M Mathapho (ANC) requested that the OPP make the overlap matrix document available to the Committee. She said there are serious overlaps in the mandates of the various institutions, especially where public servants are involved and this needs to be looked into in the light of the Kader Asmal Report. She also said that there is an overlap between the CGE and CRL's mandate regarding certain cultural practices and the CRL therefore must also be considered, although it does not report to the Committee.

Mr V Smith (ANC) said that from the presentations he had heard there were many duplications, with the only variance being certain institutions being empowered to investigate or not. What this means is that the country is not getting value for money, where different people perform the same. He therefore wanted to know where the various institutions decide to transfer complaints, because this has implications for the budget of these institutions, because the strategic plans have been presented on the basis of institutions doing a certain amount of work and Parliament ought to be consulted on these transfers. He suggested that there should perhaps be a single oversight body to monitor the Strategic Plans, because at this level it would be possible to identify such overlaps. He also said that dealing with this issue at the present stage is late, because the budget has already been appropriated and allocated. Lastly, he said that he had heard the OPP say that there is a body in the Office of the Speaker of Parliament which deals with all Chapter Nine institutions and perhaps this was the correct body to address in this regard.

Mr M Maila (ANC) wanted to know whether the MOUs concluded between the various ISDs are binding and what is done about derogations if they are binding. Particularly, whether there is any body responsible for ensuring these MOUs are adhered to and is capable of providing redress. He then said that the Committee would be best placed to do this, if there is no such body. Lastly, he asked that the MOUs in existence and those under review be made available to Parliament, so that it may lend its assistance.

Mr L Mpumlwana (ANC) wanted to know whether, and if so, how, the budgetary adjustments done through the MOUs, are reported. He also wanted clarity on what the OPP means by taking appropriate remedial measures under section 182 of the Constitution and what it means by saying that it is enforcing the Executive Members Ethics Act, reserving it if this was not the appropriate time. He was also concerned that no institution, aside from the SAHRC, had made a proposal as to what is to be done about the overlaps aside from MOUs and he requested proposals on what can be done to remedy this aside from MOUs.

Mr B Bongo (ANC) said that the presentations did not address the effect on service delivery which the identified overlapping mandates have. He also suggested that perhaps it is the appropriate time to look into amending the Constitution or producing legislation to synchronise the functions of the ISDs, as MOUs are insufficient. He said that therefore the ISDs ought to address the Committee on solutions along these lines, as “we are able to amend Chapter Nine, if properly advised by the practitioners”, because he felt that South Africa's democracy has grown to the level where these issues need to be looked at a practical level.
Ms Pilane-Majake said she agreed with the other Members about the proliferation of overlaps, because this must consume a lot of the countries resources. She was also concerned that the OPP's overlaps go beyond the Chapter Nine and 10 institutions and perhaps a larger meeting ought to be held to discuss this issue. She said that the ISDs were established to protect constitutional democracy and values, with the aim of a peaceful South Africa and therefore the ISDs also ought to be taking pro-active steps to help make a peaceful South Africa. She then spoke to the possible interventions listed in the PSC's presentation, particularly the working groups set up under the FISD, saying that it does not really indicate exactly what is being done by these working groups and she is interested to know how far these have gone.

The Chairperson said that as time was short he proposed that written answers should be provided by the following Wednesday, specifically how the institutions plan to deal with the overlaps. Further, that on the basis of these responses the Committee will compile a report and convene a further meeting. He also wanted to emphasise that the amendment of the Constitution is not necessary, because there is nothing wrong with it. The problem lies in how the stakeholders manner their affairs. Particularly as the powers of the Chapter Nine are to be regulated by national legislation, because perhaps this is not good legislation.

Adv Madonsela said that all the institutions represented had been given an opportunity to respond to at least some issues, except the Public Protector. She was “particularly concerned that the [PSC] was asked if our MOU is not working and a particular response was given and [the OPP] has not given opportunity to give its perspective, and the [OPP's] response will be left to go in the quiet somewhere else”. She said that it is “impossible to eliminate overlaps without amending the Constitution” and she doubted that even this would eliminate all overlaps. However, overlaps in mandatory jurisdiction in a multi-agency framework is not the issue, what is important is duplication and this problem can be addressed. She was “shocked that their colleagues from the [PSC] have come to this forum to say that there are difficulties in the relationship”. She then clarified that the MOU was not last changed in 2002, but rather while she has been Public Protector and then responded to the Co-chairperson's concern about the lack of timelines for MOUs saying that there were in fact timelines. She said that the PSC's original mandate was exclusively the public service and the previous chairperson of the PSC would whenever a complaint had to do with the conduct of a minister, refer the case to the OPP. The current PSC has interpreted its mandate as including the ability to investigate the conduct of ministers and she accepted this, although the OPP had not been made immediately aware of this and therefore there had been a period of duplication. She said that it was not true that the PSC deals with all cases arising out of the public service and used the example of an OPP case about a whistle-blower who is subsequently unemployed. When this person approached the OPP last year, the matter was referred to the PSC who responded that it did not have the requisite mandate. She said that the complainant is unemployed today and there are 14 others facing disciplinary action for minor infractions and who are continually approaching the OPP for assistance. She concluded by saying that it is necessary to first understand the why the legislative framework is the way it is before one can look into what must be done about these duplications and in the absence of this, the exercise is futile.

The Chairperson said that Adv Madonsela ought not become defensive, where discord grows between the institutions present, because the Chapter Nine institutions are a collective and this collective itself has identified duplications and overlaps. The Committee therefore wants the Chapter Nines to work together in order to find a solution. He committed to future meetings on this topic, the organisation of bilateral meetings so that each institution's inputs can be exhausted. A Committee report on the responses will be received in writing by the following Wednesday. He expressed concern about situations where reports are released to the public and the executive begins to engage directly with the relevant ISD, leaving Parliament a mere spectator and this is not optimal, because these are institutions supporting democracy of which Parliament is a fundamental part.

The Chairperson declared the meeting adjourned.

Share this page: