The South African Human Rights Commission presented its Annual Report, detailing its performance against targets of which it had achieved 87% including a 93% case finalisation rate and an unqualified audit opinion. Areas of underperformance included the number of Equality Review Committee meetings which had not sat in the year under review, the percentage of resolution of audit findings due by year end, which was 59% out of a target of 100%. A summary of the cases handled by the Commission was provided, with 9 633 total cases of which 4 237 were finalised, with the majority being equality matters. The Commission received a supplementary allocation of R3 million for expenses related to the Commission's involvement in the Marikana Commission.
The Chairperson began the discussion with the same question about the linkage between institutional independence and accountability. The SAHRC Chairperson responded that this could be more appropriately addressed at a future engagement, but that the Paris Principles clearly stipulate the requirements for independence and that accountability entailed reporting on its activities to publicise the fact that the institution was operating within its mandate.
Major themes from the discussion included the involvement of the Commission in dealing with complex human rights issues not necessarily in opposition to the administration, such as in pursuit of the goal of eradicating informal settlements by 2018, which required balancing the right to housing with the attempts to improve conditions generally. Further, some Members continued to object to the Commission’s involvement in the Marikana Commission and were perturbed by the allocation of additional funds for this purpose. The manner in which the Commission, as the recognised national human rights institution for the purposes of the United Nations, enables other Chapter Nine Institutions such as the Commission on Gender Equality to participate in its speaking rights on the international stage was also interrogated.
The response of the Commission was that while the first question was too broad to fully exhaust at the present engagement, it was involved in reporting on systemic violations of rights and emphasised that the economic policy choices of government have a major impact on the socio-economic climate in which it attempts to redress injustices of the past and these ought not to worsen the situation. On Marikana, the Commission replied that as there was a need to ensure the human rights theme, particularly the causative force of socio-economic conditions, was not lost sight of during the Marikana Commission. The SAHRC believed its involvement was warranted and that it was not within the purview of the Committee to dictate its involvement. On Chapter Nine Institution involvement, the Commission indicated that it is on record to having invited such sister organisations to exercise its speaking rights on the international stage, however there has been resistance and such representation cannot be guaranteed by the Commission. It therefore enjoined the Committee to assist in revitalising the Office for Institutions Supporting Democracy (OISD), which could aid in formalising such processes, with the Committee’s supervision.
South African Human Rights Commission Annual Report 2013/14 and performance 2014
Mr Kayum Ahmed, Chief Executive Officer: South African Human Rights Commission, said that the presentation has been updated slightly, but this do not affect the substance. He began with the key performance highlights which included an 87% achievement of targets; finalising 93% of cases exceeding the target of 85%; and the Chairperson of the South African Human Rights Commission (SAHRC or Commission) assuming the role of International Coordinating Committee of National Human Rights Institutions Chairperson. He then spoke to a table which was a broad overview of the percentage of targets achieved under various strategic objectives, saying that for there had been good performance in the area of promoting compliance with international obligations, where all targets were met; while there had been an underperformance under improving the effectiveness and efficiency of the Commission, where five of the 17 targets were not met.
Objective 1: Promote compliance with international obligations
Here Mr Ahmed said that Commissioners had participated in 20 international and regional activities. This participation was expanded to include following up on the recommendations adopted at these multi-lateral conferences. Lastly, the SAHRC complied its Annual International Human Rights Report, which not only documents the Commission’s work, but also government’s compliance with its intentional human rights obligations. He noted that several departments are yet to submit their reports to the relevant bodies, but the SAHRC has been liaising with both the Department of International Relations and Cooperation (DIRCO) and the Department of Justice and Constitutional Development (DoJCD).
Objective 2: Positioning the Commission as a focal point for human rights in South Africa
Mr Ahmed said that Commission managed to finalise 8550 of the 9217 cases that were received in 2013/14. The SAHRC participated in 98 stakeholder engagements. The Commission has also established and hosted 15 section 5 Committee meetings, consisting of experts, aligned with the various functional areas chosen by Commissioners. He added that government officials are invited to the meetings as well.
Objective 3: Strengthen advocacy and human rights awareness raising
The Commission hosted a National Conference on the Right to Food on 20 March 2014, under the annual theme for the year under review. The Commission hosted a roundtable on Business and Human Rights in preparation for the strategic thematic area for 2014/15. 19 Provincial and 2 National Human Rights events were held to advance advocacy efforts. A successful example is the engagement lead by Commissioner Danny Titus, on developing a human rights culture within the SAPS.
Objective 4: Advance the realisation of human rights
The SAHRC completed its Economic and Social Rights Report 2012/13 reporting on the state of economic and social rights in the country and recommending improvements. Further, a matrix of indicators was developed to improve monitoring and reporting on these rights. The matrix expands upon socio-economic rights as set out in the Constitution. The Commission also made submissions on draft legislation to ensure a human rights based approach within the country’s legislation. The Commission has also been conducting public hearings into specific issues, including a hearing by Commissioner Lindiwe Mokate into learning materials in all provinces and engaging with government departments.
Strategic Objective 5: Advance the right to equality and the right to access information
The SAHRC submitted its Promotion of Access to Information Act Annual Report to Parliament reporting on compliance. The Commission conducted 28 training sessions for private and public sector compliance officers; 25 Promotion of Access to Information Act Community Law Clinics to raise awareness and process complaints; and hosted a Business Transparency Conference, which was attended by former Minister Trevor Manuel and the then Deputy Minister of Justice Andries Nel.
Strategic Objective 6: Optimise the effectiveness and efficiency of the Commission
Mr Ahmed said that while the SAHRC has received an unqualified audit opinion, however this is cause to celebrate as more work will be required to maintain this opinion. The Commission also fully implemented the Internal Audit Action Plan. Further, it complied with all financial and non-financial performance reporting requirements.
Areas of Non-achievement
Mr Ahmed said that the no Equality Review Committee (ERC) meetings were held, therefore completely missing the target, because of trouble forming the review Committee. Leaving it to the Chairperson to expand as he sits on the ERC. The next major area of non-achievement is the implementation of Strategic Risks Annual Treatment Plan, which was 40% under target. The reasons for the non-achievement is the capacity constraints which bar the appointment of a specialist in risk management and the setting up of an external committee for assessment purposes. To mitigate the limitations the SAHRC has engaged external experts to better achieve in the current financial year. The next are is the percentage resolution of audit findings due by year-end, under achieved by 41% with 21% in progress and 20% open. This is what initially led to the qualified audit previously and the progress made led to the unqualified audit. The Commissioners’ Capacity Development targets were also not achieved, with only a 33% performance on a target of 100%. The major obstacle was coordinating the schedule for legal training. Mr Ahmed noted that the training was simply pushed forward into the current financial year and is underway.
Update on Legal Investigations
Mr Ahmed said that the total caseload of the SAHRC was 9633, with 4237 equerries finalised, 258 referrals and 158 appeals. Next he spoke to a pie chart which indicated the areas which were litigated the most during 2013/14 with the bulk being equality matters at 47%, with freedom of expression being the second (22%) and the human dignity third (18%). He noted that there had been an increase in the numbers of freedom of expression matters with a 19%. Many of these cases relate to the use and abuse of social media; therefore the Commission is developing mechanisms to deal with this. Furthers, that the advocacy work around water and sanitation had also seen a 3% increase. The trend analysis indicates that racism persists, unfortunately, in schools and tertiary institutions. In order to mitigate this trend, Adv Mabedle Mushwana Chairperson: South African Human Rights Commission, has instituted a public hearings into the state of transformation in higher education. Furthers, Commissioner Shafie Ameermia has also initiated a project, together with civil society organisations, called the “know your constitution” project, focusing at the basic education level. This is therefore an area which required sustained and systemic intervention. An initiative for the next financial year, under Adv Mushwana regards curriculum reform and particularly how the Bill of Rights is taught and not taught in life orientation at schools.
Overview of Financial Statements 2013/2014
Mr Ahmed continued to highlights of financial performance for the year under review. He said that on average MTEF baseline allocation comprised an increase of 14%. Further, the allocation for the year under review was increased with funding for the involvement in the Marikana Commission, which could not be spent at the end of the financial year. This lead to revenue of R199 million, against actual expenditure of R108.5 million. The surplus allocation was pushed forward to the 2014/15, which has all been spent. He noted that there has been a steady growth in the revenue grant over the past five years, peaking in the year under review, which also reflects the largest additional allocation at above R3 million. He indicated that donor funding had steadily decreased, because of a strategic decision to allow these funds to find their way into civil society, as well as to enhance independence. However, certain projects are still funded by the Foundation for Human Rights.
He moved on to a breakdown of expenditure, saying that the personnel costs have increased by 8% in line with the annual cost of living adjustments. The Commission has also made an effort to cut administrative costs which reduced by 4%, which speaks to greater efficiency and allows for more funds to be allocated to operational areas. As evidenced by the 31% increase in operating costs and these efforts seem to be bearing fruit in light of the increase in cases handled and finalised.
Lastly, he dealt with a breakdown of the 2014/15 budget allocation and expenditure. He noted that personnel costs remained high at R30.8 million, which translates to 38% of the allocation being spent. The next largest expense was rental, at R6.5 million, larger than operating costs at R5.1 million. In total 36% of the allocation has been spent and Mr Ahmed said that when he had looked at the figures up until September this had grown to 41% which was standard for the time of year.
Overview of 2014/2015 Performance at August
Mr Ahmed said that overall the Commission has 75% of its Annual Plan in progress, while 12% is completed and 13% is planned for the latter half of the year. On strategic objective 1 he said that the Commission continues to promote compliance with international and regional obligations and is an ‘A rated’ national human rights institution (NHRI). On strategic objective 2 he noted that 91 stakeholder engagements have taken place and human rights clinics were run to provide integrated services to marginalised communities. On strategic objective 3 he said that 78% of the 3711 cases received have been finalised and the SAHRC has received favourable verdicts in two cases dealing with unconstitutional detention of immigrants by the Department of Home Affairs and the delivery of learning materials by the Department of Basic Education. He informed the Committee that departments have a tendency to appeal decisions; using money which would be better spent implementing the SAHRC’s recommendations. Further, it was noted another achievement was the development of a report on poverty traps and social exclusion among children in South Africa, part of a focus on the effect of poverty on children. On strategic objective 6, Mr Ahmed said that the Commission had made satisfactory progress on attainment of midyear targets, complied with quarterly and annual reporting requirements to relevant institutions. Lastly, there was 92% compliance with all relevant legislative, regulatory and policy requirements.
Forward Funding Needs
Mr Ahmed said that in the 2012 Budget Review and Recommendations Report the Committee had indicated that additional funds starting with R32.81 million in 2013/14 and R16.4 for the following two financial years. However, the only amount which was secured was the R16.4 million for 2015/16. He emphasised the powers which the Committee had and given the commitments made by the former Committee, the question is begged why have the funds not been provided. While the Commission keeps hearing that the Committee supports the work of the SAHRC, but this is not reflected in explicit support at National Treasury meetings.
Remarks by the Chairperson of the South African Human Rights Commission
Adv Mushwana said that Mr Ahmed had referred to the ERC not having any meetings in the year under review. A problem was Parliament not having appointed members to the committee and therefore it cannot convene. This has been referred to
The Chairperson said that there is a debate around independence of the Chapter Nine Institutions, which the Committee fully supports as this is a constitutional imperative and the scope of which is regulated by the Constitution. However, independence is linked to accountability and as these independent institutions are independent, but accountable to Parliament. Therefore, what is the content of this accountability? What is the role of the Committee in dealing things reported such as appointments which were supposed to be made, but are not, expenditure shortfalls and reports by the Commission which have not reached the Committee. Parliament is in turn accountable to the people and it needs evidence to support the decisions it has made. Therefore, the concept of accountability must be unpacked. He suggested that reports should be sent to both the Speaker of Parliament and the Committee, with an executive summary highlighting the issues, to avoid the need to educate the Committee at interactions like the present one. He appreciated the SAHRC raising the issue of evictions from farms, because Parliament had to make a law to stop these evictions. The evidence indicates that these still take place, because “the land owners fear land reform”. Related to this is the slow movement of land reform, due to factors such as the market price of farms. This leads to the impression that government is not doing enough in this area, while the land owners make it impossible for government to deliver. He felt this was a human rights issue and the SAHRC should prioritise such issues could lead to the democracy being jeopardised. The Committee Members are public representatives and through interactions with the public learns of their frustrations. If the SAHRC does not have a dynamic relationship with the Committee it will not learn the same and not be able to do justice to the work. On the Community Human Rights Law Clinics, he said that these could be operationalised through civil society and this should be encouraged, because State resources are limited. Turning to racism, he said that white children born in the 1990s should be treated fairly, as they have not experienced apartheid and by the time they reach university they are steeped in racism. He questioned whether this is the type of racism which can be treated through public hearings and should the approach not rather be educational programmes for younger children. The importance of the Commission lies in its ability to drive such initiatives. On curriculum reform, he said that there is an incorrect impression that human rights originated in Europe, based on the principles of equality, liberty and fraternity. This ignores that these principles were taken by the French and American revolutionaries from ancient societies, including the African ones. If it is accepted that Africa is the cradle of humanity and its arts and culture, then the curriculum needs to be designed so that it does not entrench white supremacy. As the Constitution deems Chapter Nine Institutions’ role to be strengthening and supporting democracy, however litigation occurs between these institutions and the government departments which they are supposed to support. Therefore, he felt that the relation was not properly defined and the Chapter Nine institutions should rather engage the departments to demonstrate that their actions are objectively wrong. If courts are required, then the limited budget of the state will be even more strained. Lastly, he noted on the Commission’s involvement at Marikana, that a variety of parties wish to join the work of the Marikana Commission. However, this will mean an over-dedication of resources and he therefore asked for a way to rationalise the involvement. He suggested the SAHRC using the Forum for Institutions Supporting Democracy (FISD) to decide on the division of labour, to efficiently use resources.
Mr W Horn (DA) asked about the 93% finalisation rate and would like an explanation as to what the SAHRC deems finalisation, whether it is when the report is published or when litigation is concluded. He linked this to the practical example of the Free State, where a variety of municipalities have been impugned on water issues and with the reports having been produced, will the SAHRC come back to follow up on implementation or once the finding is made is the SAHRC’s involvement complete. He was concerned about the contradiction between the SAHRC stating that it has 100% compliance under international obligations, yet the Committee is aware of DIRCO not having presented several human rights reports to Parliament or the relevant international body. Specifically, does the SAHRC regard itself as having to aid in the completion of the reports or if it also monitors submission. On the audit he said that the Auditor General has indicated that it will be difficult for the SAHRC to repeat its performance of the previous year and what measures have been put in place to avoid this situation. He asked how and when the Commission decides to litigate on a finding, specifically explaining the decision making process. Lastly, he said that in the organogram there is the potential for an additional Commissioner and although funding is a problem and indications from the Minister of Finance do not bring much hope, how is the Commission going to deal with this matter and the backlog of cases?
The Chairperson picking up on Mr Horn’s international concerns, saying that there are indications that South Africa is represented in a disjointed fashion on the international stage, with a variety of people from different institutions and levels of government all trying to represent their version of South Africa. He would therefore like a report, because the one from DIRCO help to illuminate whether the country is speaking with a unified voice.
Mr L Mpumlwana (ANC) asked whether if he were to go into a rural or marginalised community and asked about human rights and the organisations which advocate for them, whether he would receive any cogent answer. With the farm evictions he knew about the SAHRC’s involvement through the media, but how would a farm worker access the Commission directly when there is a problem, particularly as they are essentially slaves, who must toe the line on pain of being thrown out. He also enquired whether the SAHRC is working with organisations already in the grounds, such as churches. He asked how the Commission understands and is dealing with the history of South Africa in order to try and break the chains of oppression, which have been entrenched in the minds of people over centuries. Particularly, in terms of an action plan to try and make real progress practically and in the minds of the people, seeing as democracy was attained as far back as 1994. He also asked whether the SAHRC receives any donor funding or if all it receives is from government. If so, what are the terms of acceptance and who are these donors? Lastly, he asked what the split between is operational costs and compensation of employees, because he was worried that the organisation could be more focused on hiring people than service delivery.
Mr B Bongo (ANC) was concerned about the extent of mandate overlaps with other Chapter Nine Institutions and would like to know how the Commission proposes to deal with this. He also said it seemed that the Commission was more output orientated than outcome orientated, which made it difficult to conduct oversight and may detract from the true purpose of the SAHRC which is to champion fundamental human rights. He also asked how the SAHRC deals with the Prevention of Illegal Evictions Act, in light of the involvement with farm evictions. Further, what is its view on the Inter-Governmental Relations Act, echoing the Chairperson’s concern that South Africa speaks with a fractured voice. He also asked what role the SAHRC plans to play in fostering a non-racial, non-sexist and prosperous society, rather than focus on administrative neglect of human rights.
Ms M Pilane-Majake (ANC) was worried by the non-achievement under the head of optimising the effectiveness and efficiency of the Commission. On access to information, despite not doing well, she asked what the SAHRC is doing to prepare for the hand over and how far is this process. On the SAHRC is the NHRI, she asked what is the progress regarding allowing other Chapter Nine Institutions to share the platforms of the international stage. At present these institutions are at time forced to be part of the technical teams of government departments, which negatively affects their independence. She raised the issue of poor performance, around the implementation of the Strategic Risk Management Plan and this was of concern, because it could result in a qualified audit. She therefore asked if there are systems in place and does the audit review committee aid in the fight against this. On the audit findings she was concerned about the several findings which the Auditor General had found in the area of information communications technology and indicated that this was an area that needed to be worked on. Further that the audit action plan has only been implemented 59% which she hoped would be solved by the next meeting. She also asked who from the Commission is on the audit committee. Echoing Mr Mpumlwana she said that South Africa has the Commission in order to foster a peaceful society, grounded in human rights, in order to better the lives of the people in general. Therefore, does the SAHRC ever measure the impact being made by similar institutions in this effort. For example, South Africa plans to eradicate informal human settlements by 2018 and the targets for delivery have almost been exceeded and it is important to know how such institutions can contribute to combating these settlements, as people exploiting the process by selling or renting out state funded housing. Further, how it intervenes, in aid of the efforts of local government, in complications such as the need for alternative housing while the informal housing is removed. The Committee had previously expressed a concern about the SAHRC’s involvement in the Marikana Commission, on the basis of why would the Commission want to get involved in a matter which is before another forum. The understanding would be that the work of the Marikana Commission should conclude and expose areas for intervention by institutions by the Commission. She also wanted information about whether the additional funding received for Marikana came with the Committee’s approval, because it does not make sense that the Committee does not support the involvement, but supports it being funded. Further concerns were raised in the audit around information and communications technology, including the absence of external service providers monitoring performance and the IT disaster recovery system not having been tests, she hoped that these areas were being worked on.
Mr M Maila (ANC) asked if the Commission is a beneficiary of donor funding and the impact this has on the independence of the Commission. He would also like to know the extent of the use of consultants in the work of the SAHRC. Further, that as the SAHRC is an independent institution like the other Chapter Nine Institutions, how it understands balancing this with its accountability to Parliament. Lastly, he was interested to know how and to what extent that the Commission is involved in the protection of rural communities in their interactions with large businesses such as mining companies.
The Chairperson picked up on Mr Bongo’s point about people being their own liberators and said this has led to the Committee want to pass legislation regulating paralegals and community justice structures, so that people are empowered to solve their own problems and only approach the state when it is absolutely necessary. Otherwise, a “dependence syndrome” is created, which leads to people expecting government to take care of everything. He therefore, hoped that the SAHRC would lend its support to this legislation which should be introduced early the following year. Another concern was that universities are responsible for legal education and the SAHRC should be involved, particularly as both run law clinics; he therefore asked the extent of communication. Lastly he said that when the Universal Declaration of Human Rights was adopted, many African countries were not involved and because of this, starting with the Banjul Charter, African states started to advocate for human rights in the African context. Flowing from this there are regional instruments such as the African Charter on the Rights of the Child, which are geared towards realities present in Africa which may not necessarily be present in “Western realities”. This is relevant because the Western human rights philosophy is based on individualism, while the African is based on collectivism and to what extent does the Commission when interpreting human rights keep in mind the collectivist basis of African human rights. As Africans seeking African solutions to African problems such factors need to be kept in mind, lest the law be delegitimised and make human rights foreign to the people. While this problem did not belong solely to the Commission, it was an important role player and should therefore look together with universities and the like to engage with these issues going forward.
Adv Mushwana said that the variety of issues raised is great and each requires serious debate, because of the differences between the positions of the Committee and the Commission. For example on the overemphasis on outputs, rather than outcomes; he asked if the law and Constitution are applied with a specific remedy being identified, would this be an output or an outcome. His point was that the terminology chosen did not lend itself to certain instances where the approach is dictated by the law. He emphasised that the SAHRC has requested a meeting with the Committee and was glad that the response had been positive, simply awaiting an appropriate date. He appreciated this because Members were positioned to inform the Commission of important matters. His concern was how to synergise functions. For example, as Members have constituency offices would the SAHRC be allowed to use these offices for outreach. The SAHRC represents South Africa at the UN which recognises only one institution per country, the interaction will be different from that which government would engage in. The Commission is not opposed to government, and it does work in tandem on things like the Universal Peer Review System and where there is a contested issue the SAHRC has duty to report this to the international forum. Therefore, representation at international meetings will not necessarily lead to a duplication of work. He also did not understand why the Committee was questioning the NHRI concept, which was part of the Paris Principles to which South Africa is a signatory. The Paris Principles also delineate what is meant by independent and this will be outlined at the planned meeting with the Committee. There is no government funded institution which is completely free of government’s reach, however independence to the extent that an institution has funding for things like employing staff is important. Independence requires funding, but does not mean the institution “can wake up and do its own thing”. Noting that only one NHRI is recognised per country and that it is wrong for an NHRI to ‘piggy-back’ on a government delegation. In order to allow other Chapter Nine Institutions to participate in international fora the Commission has allowed these institutions to send representatives and where the forum is better suited to the Commission for Gender Equality for instance that institution is given the speaking rights. The SAHRC is on record inviting these institutions to operate in the above manner, but there have been times when it has been rejected with the institutions preferring to go as part of the government delegation. It was therefore important for the Committee to assist in helping to understand South Africa’s peculiarity in having several institutions involved in the human rights sector, including Chapter Nine Institutions. He was also concerned that the SAHRC was being viewed as a large institutions, when in fact it was a small institution with a staff of less than 200. The SAHRC was therefore unable to reach everywhere and had to confine itself to incoming complaints and the small amount dealt with during outreach. In rural in order to reach grass roots the Commission links with NGOs which have better connections here, because it is impractical to expect the SAHRC to cover the entire country with its current staff compliment. On donor funding he said that the funding, if it is received it is from institutions such as the UN Human Rights Council, and this happens on an ad hoc basis for projects such as the education campaigns and investigations subsequent to the xenophobic crisis. If the mandate of the Commission is compared to its budgetary allocation, then it will be seen that not everything can be done that is required by the Constitution.
The Chairperson said that it is not necessary for the SAHRC to agree with the sentiments of the Committee, what is important is that engagement is happening, with a sharing of information between the parties. This will aid the Committee in its duty to explain the Commission’s efforts to the people.
Ms Pregs Govender, Deputy Chairperson: South African Human Rights Commission, supported the sentiments of Adv Mushwana. She agreed that the issue of reaching remote persons is important and that land and natural resources is a human rights issue. There is also the question of how to deal with the lack of power, which has been deepened by poverty, inequality and violence and how are the causes of these problems addressed. The ideological framings in which the Commission functions, such as the dependency of poor people is highly contested, because if how the state has transformed and who is subsidised is properly studied the picture is not so one sided. She cited the example of 95% of rural water being used by under 2% of the population, which is mainly composed of agri-business, which came from a government statistic. In order to transform, it needs to be understood why white people wealthier today than they were in 1994 and what is the policy allowing this to happen. Things such as the history and legal curricula are important, however this has to be looked at in tandem with the economic policy choices which South Africa is making and the human rights impact of this needs to be looked into. This was not the appropriate time for this discussion, but it should be had in the future. All the areas being looked at is being done in a way which speaks to the indivisibility of rights and especially that the poorest in the country bear the brunt of violations of rights and are barred from enjoyment of rights. If the water and sanitation report is taken, a key finding was that the apartheid spatial geography is deeply entrenched, therefore the Deputy Minister of Cooperative Governance and Traditional Affairs was asked how this is to be addressed. Particularly, as water and sanitation cannot be dealt with unless there decent human settlements, in turn these cannot exist without dealing with the apartheid spatial geography. The Deputy Minister began to speak about how government has failed and how this is beginning to be addressed. There is a contestation in the country, because the rights are in the Constitution and in the law, yet there are contradictory policies in place. An example of this is the fact that 90% of the seed in the country is owned by three global corporations, meaning that every year farmers are forced to buy the seed, pushing up prices, despite the existence of the right to food. On the SAHRC’s mandate and its capacity, she said the Commission is supposed to support constitutional democracy and the role of a strong Parliament is to overseeing government decision and interrogating them for their human rights impact. The SAHRC would welcoming having countrywide reach, yet there is government at local, national and provincial levels with is tasked with the duty of creating a democracy which upholds the human rights in the Constitution. The Commission’s main task in this is monitoring the achievement of this effort.
The Chairperson said that maybe it is too late to say that government has failed, because he felt that everyone present was government. Having raised critical issues like the right to food and access to water, this is where the SAHRC is to come in as an institution supporting democracy, by giving Parliament the information which will oversee government. Therefore, no one is failing, rather the synergies are not properly aligned in the system creating a situation of failure.
Adv Mushwana added on the water and sanitation issue that part of the SAHRC’s job is to hold public hearings throughout the country, where ordinary people are allowed to tell their story about the water and sanitation situation in their immediate area. The report will be tabled in Parliament and it will show that the Commission is not just folding its arms, having gone to every province and included the institutions responsible for delivery. Consequent to the report, the Commission is engaged in monitoring, because it now has a benchmark. When the Committee indicates that it does not know of such things, this is where processed for sharing information must be created, to endure oversight over the relevant department.
Ms Lindiwe Mokate, Commissioner: South African Human Rights Commission said that in terms of international reporting obligations that the Commission works with government to remind it of when the submission of reports is due and when government does submit the report the Commission and where the UN Committee has produced representations it monitors the implementation thereof. She added that the SAHRC also reports to Parliament on the outstanding reports. On the grants that are received, she said that all of these are linked to projects and are not simply the granting of monies. On Mr bongo’s question of outputs versus outcomes, she said that the Annual Report are drafted along guidelines form National Treasury and this is followed almost to the letter, the Annual Report therefore does not cover everything the Commission does. The SAHRC is therefore not overly concerned with outputs. On donor funding affecting independence, she said that this has been answered because money is not simply accepted. On the SAHRC’s role in advising government, rather than litigating she noted that there are cases where the department will cite the SAHRC and force it to become involved in the litigation.
Mr Titus expressed his appreciation for the incisiveness of the questions almost to the point of becoming operationally involved, which he felt in terms of the Commission’s independence “is our business”, but this should be debated at the future meeting. On the philosophical background informing the interpretation of human rights, he said that there are many influences, including English and African principles, which are taken into account in the interpreting rights. On Marikana he said that the SAHRC is of the view that the human rights elements including prevention of torture, the right to life and freedom of expression which lead to the activation of the mandate of the SAHRC. It is felt that it is necessary for the Commission to express itself on these issues at this forum. Initially it was thought that the SAHRC would form its own commission, but this was decided against after engagement with the Committee. The Commission further strongly disagrees with the view that it has no right to participate and ought not have a say in the process. On the comment by Mr Mpumlwana that African life is worth less than that of a fly, not in terms of the Commission which values all South African lives. Particularly of African people, but not exclusively as there are many other people which are vulnerable to human rights abuses. In the hearing on farm safety, what came through was the thousands of African farmers and small holders there are. The institutions representing these people indicated the completely different way in which the workers are treated. He therefore wanted to put forward another angle on the issues. The African interpretation of rights and law, he said that these are not in opposition to the established human rights norms or with the Constitution itself. The arguments raised are exactly those raised by Asian countries at the Vienna conference in 1994 around how relevant is the Universal Declaration of Human Rights. It is important to take into account historical experience, religion and culture, but there is such a thing as the universality of human rights, an example of which is the right against torture. The Commission will come to this Committee and the Portfolio Committee on Police with evidence of the human rights violations
The Chairperson reassured the SAHRC that the Committee and Parliament would be the last to challenge the independence of Chapter Nine Institutions, as it is its constitutional duty to protect the Commission. If the Committee got involved in operational things, it is to address the question of resources, because there are mandate overlaps leading to different institutions asking for money to do the same work. The questions put to the SAHRC is not because the Committee does not believe in the independence of the Commission. At the same time the SAHRC is accountable to the Committee and therefore needs to understand how it comes to certain decisions. He therefore encouraged constitutional democracy to be viewed as a living organism of which the various institutions are all a part and therefore they must communicate properly.
Mr Bongo said that the Members were not asking the questions to prove a particular point, rather they were making enquiries on behalf of the people who have voted them in and would not like the Commission to perceive the engagement as an attack. Therefore, the Committee was geared towards interrogating the matters, so that it can ensure that the Commission gets the assistance it requires in the joint effort of the betterment of South African society.
Ms Pilane-Majake clarified her question saying that she had asked how the SAHRC shares the international space with other institutions to enable their specialist area to receive proper exposure, rather than for an explanation of the UN’s requirements. There was also a question about the new Act dealing with access to information and this has not been responded to. She also encouraged the Commission to indicate its policy on involvement in projects such as the one to irradiate informal human settlements by 2018. Another systemic problem was the level of protesting in South Africa, which was protected as a human right, yet these protests turn violent and result in things like malicious damage to property; and how would the SAHRC intervene in this. Another question was on the R72 million on personnel costs. She was also concerned about the statics on rural water provided by Ms Govender and would like to know what systems have been put in place for remedying this problem. This is important, because transformation is not just about talking, but rather putting in place systems to ensure change. On South Africa funding the African Court of Justice, she asked if the Commission has put in place any measures to ensure that the declaration is indeed submitted. On the request for funding to enable the chairing of the International Coordinating Committee of National Human Rights Institutions, it was her understanding that when last presented this held no financial implications, but now R2.3 million is being requested and she asked to be corrected if she was wrong. She also asked for motivation for the R2.6 million requested for travel and whether this was local travel or included overseas travel.
Ms S Sithole-Shope (ANC) asked the Chairperson to facilitate the reception of the report on water and sanitation, because she was extremely interested. She felt that all lives were important and ought to be protected, while she missed the follow up on Marikana she had heard in the media that 34 people had died. She was aware that this number was higher and included members of the SAPS. She felt that it was important for both Parliament and the SAHRC to be seen to be protecting the SAPS, otherwise how will the country deal with the scourge of crime. Therefore, she urged the Commission to be concerned, because the morale of the SAPS is very low, particularly due to the media coverage did not indicate the ten SAPS officers killed. She therefore supported a full package of protection for every single South African.
The Chairperson commented that report had already been tabled and it would be made available to her. He also agreed with Ms Sithole-Shope’s sentiments and said there was a trend where the right to peaceful process is perverted into an opportunity to damage private property and the owners of this property want their property protected. It is the task of the police to provide such protection and where they are attacked, they cannot shoot back, lest the focus be on the reaction of the police, rather than the aggression towards the police. The SAHRC should develop an educational tool to teach people that human rights do not only belong to civilians, but apply equally to law enforcement officers.
Ms Pilane-Majake added on Marikana that there will be a problem if it is simply accepted that the institutions disagree on whether it is correct for the SAHRC to be involved. Previously the Committee disagreed and the process simply continued to the extent that supplementary funds were allocated. She was concerned that issues flagged in the accounting process are simply ignored or if a contrary decision is taken that the Committee is not appraised of this.
Adv Mushwana explained that the previous Committee had had a problem with the Commission making use of the services of the Legal Resources Centre (LRC) as their attorneys in Marikana, because a Commissioner works part time for the LRC and it was felt that there was a conflict of interest. The SAHRC complied and removed LRC from case. Further, there had been no discussion where the Committee had said do not engage in Marikana and if the Committee has the power to dictate the SAHRC’s participation in Marikana is debateable. If the terms of reference of the Marikana Commission are looked at then it will be seen that no mention is made of human rights and the SAHRC felt it important that this cannot be left out of the preliminary phase, when the second phase deals specifically with socio-economic rights. The informal settlement in Marikana is part of the problem and this factor cannot be ignored. He also reminded the Committee that the Commission had received a complaint and did not decide to enter Marikana on its own. The route decided upon was to rather participate in the commission, than the Commission conduct its own enquiry. He added that the Commission is ready to provide more information, which will also be contained in the report.
The Chairperson said that perhaps the reason the Committee has not accepted the involvement in Marikana is because it is unsure whether the SAHRC is acting on behalf of the SAPS or the Community. He understood the approach to be that the dehumanising and degrading socio-economic conditions were a contributing factor and the Commission’s submissions were aimed at ensuring that the Marikana Commission is appraised of these factors. He said that what would be important would be to fully provide the Committee with information so that there are no gaps in understanding.
Adv Mushwana emphasised that if the Committee required more information the Commission would oblige. He wanted to make it clear where the ability of the Committee to intervene in the decision to go to Marikana stops.
The Chairperson interrupted saying that the Committee is not seeking to interfere with the Commission’s independence and all that was asked for was information so that the Members could relate this to the public in pursuit of their duties as public representatives.
Ms Khumalo said that the reported 93% finalisation of complaints is guided by the South African Human Rights Commission Act and by the Paris Principles. A portion of the percentage relate to matters where advisory services were provided to communities or complainants. Secondly, it includes matters which the Commission itself has resolved and a number of mechanisms are used, including investigation and reports with adverse findings or litigation. The third method of finalisation is through mediation efforts. On a systemic level Commissioners may also make use of the mechanisms of public hearings to air an issue and the outcome of this would be contained in a report with findings and recommendations. On when the Commission chooses to litigate, this is done when an attempt to resolve an equality matter through mediation fails, which may lead to a matter being lodged in the equality court. Where there is urgency at play the, in which case an urgent application will be moved. Lastly, where systemic human rights violations are identified which affect a broad based of the population then litigation at a constitutional level may be attempted to achieve a broad impact. On the reporting of the work of the SAHRC in terms of outcomes versus outputs, she said that the Commission is taking this seriously. For the first time a report is being produced, which will be analysed to report on trends and patterns. On advocacy, she said that the SAHRC is developing tools to measure not just the interventions, but the impact thereof.
Mr Peter Makaneta, Chief Financial Officer: South African Human Rights Committee, spoke to the R72 million which was the initial budget allocated, but the actual expenditure was R67 million. The extent of the variance was also due to the high vacancy rate. On absence of daily controls and other ITC issues, he said that the report was perhaps slightly out dated since tabling and that these had been resolved. An example being the disaster recovery system has been implemented at Bedfordview. On the appointment of an eighth commissioner, in the 2014/15 budget the DoJCD said that it would do a variance in its budget in order to relieve the funds which will be used to fund the eighth Commissioner.
Mr Ahmed said that on how well the SAHRC is known he said that a recent study had indicated that 40% of South Africans knew about the Commission. This speaks to the challenge of popularising the work of the Commission. Further, that the SAHRC does indeed make use of local radio for advocacy purposes. On the Promotion of Access to Information Act (PAIA) had indicated that according to Deputy Minister of Justice, the Information Regulator would most likely com e on line in 2015, but that the SAHRC should budget for the expense regardless, given that the PAIA. On the underperformance and audit findings flagged by Ms Pilane-Majake he said that the concerns are certainly noted by the Committee; however the risk management system, which is handled by each individual manager, with ultimate control resting with the CFO. He noted that the CEO and COO, as well as a representative Commissioner sit on the audit committee. On the impact of the SAHRC in breeding awareness of human rights he said the Commission plans on conducting a baseline survey study to determine how well communities know their rights, the SAHRC and what can be done to bridge the gap. This will be worked off of create concrete plans for improvement. On the outsourcing of consultants, during the year under review due to the qualified audit findings these consultants were a necessary expense which totalled approximately R700000. Having developed in house capacity and reduced reliance on consultants that figure should decrease. The Chairperson having said that people ought to be their own liberators and the legislation on paralegals would certainly be supported by the Commission and Commissioner Ammermia’s project ‘Know your Constitution’ is guard precisely such an effort. On the advice of the Committee the SAHRC is not only consulting with former white universities, but is engaging across the country with different types of universities. On the Universal Declaration of Human Rights and the need for a more African approach, the Chairperson should be pleased to note that on the front page of the Annual Report the SAHRC quotes the African Charter.
Adv Mushwana said on the attention paid to SAPS in relation to Marikana that the Commissioners have various focus areas and Commissioner Titus focuses on the SAPS. The SAHRC is also involved in efforts to enhance the SAPS’ engagements with community policing. The Commission has never taken the attitude that the protestors are always right, however it is true that police do require more training. On the African Court of Justice, he indicated that the Commission has exhausted its options with government and there is nothing it can do to ensure that the declaration is submitted. On how other Chapter Nine Institutions are involved on the international stage he said the institutions are invited, but the challenge remains rebuilding the Office of Institutions Supporting Democracy (OISD). This is because there is no formal requirement for participation or representation of the other Chapter Nine Institutions and the Commission cannot force the other institutions to participate. Formalising a budget and programme for OISD would make the dates and content of the meetings known, enabling the Committee to assist in coordination of not only international representation, but case referrals. He said that Commissioner Ameermia had assumed the focus area of housing and indicated that he was sure that he was working on a strategy for informal settlements, but this was on an ad hoc basis and a report would be available to the Committee at its instance.
The Chairperson welcomed the leadership of Adv Mushwana and pledged his assistance with OSID through a recommend to the effect that its meetings should not be at the instance of any one party. He continued saying that the language must be carefully used, because when speaking of the Public Protector it is appropriate to say “take remedial action”, however in the Commissions case it is a recommendation.
Adv Mushwana clarified the difference saying that in the South African Human Rights Commission Act it stipulates that where a right has been violated the Commission may take the matter to court, for example in unfair eviction cases. There are areas where a report with recommendations or other appropriate redress is sufficient to end the offending actions. In a case of hate speech the appropriate forum is the Equality Court, where the SAHRC appears under the auspices of the Promotion of Equality and Prevention of Unfair Discrimination Act. The Commission follows its legal injunction to correct the situation, through the most appropriate means available in law.
The Chairperson appreciated the explanation and declared the meeting adjourned.
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