South African Human Rights Commission supplementary briefing

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Justice and Correctional Services

06 May 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The meeting began with the Chairperson inquiring if any progress had been made by Chapter Nine Institutions within the Forum of Institutions Supporting Democracy, particularly as the Committee had wanted these institutions to discuss their overlapping mandates. Further, this would facilitate a discussion on the nature of independence and accountability under the Constitution. The South African Human Rights Commission (SAHRC) responded that Chapter Nine Institutions had had a meeting under the Speaker to discuss such matters and that the Forum was functional. However, there was no significant progress with either of the issues raised. Members therefore supported having a meeting arranged by the Speaker between Members and the Chapter Nine Institutions to discuss matters including the correct interpretation of institutional independence.

 The SAHRC responses to questions raised in a previous meeting covered topics including the problems faced by the Commission in getting its recommendations implemented by government. The Commission was eager to have the assistance of the Committee in ensuring implementation of these recommendations. It intended to compile a repository of all of its recommendations indicating which had not been implemented. This question was asked in relation to the Commission’s report on xenophobic violence and SAHRC said this trend persisted, although it would be mere speculation to attempt to say to what extent the present violence could have been reduced.

A second major theme was the access to justice campaign launched in April. The right of access to justice was characterised as being entrenched in several international instruments and the Constitution. This fundamental right was seen as having its base in people’s knowledge of their rights. Therefore it was decided that the first thing to tackle is people having physical access to the Bill of Rights. To this end the Commission collaborated with select stakeholders to have a reduced copy of the Constitution produced and distributed to all 81 school districts and to municipal libraries. Electronic access was also seen as an important tool for people knowing about their rights and a copy of the Bill of Rights in all official languages has been hosted on the Commission’s website and available via Mxit. The Commission also plans a colloquium to gather various stakeholders including the organised legal profession, paralegals and community based organisations with the aim of determining how to resolve the problems with access to justice in South Africa.

A third major topic of discussion was the SAHRC’s involvement in land restitution efforts. The SAHRC has received about 183 complaints relating to section 25 of the Constitution and decided to hold a hearing to look at what challenges and difficulties are facing the institutions, including the Land Claims Court, the Department of Rural Development and Land Reform and Commission on Restitution of Land Rights. This aimed to facilitate this land restitution process. The parties involved put forward the challenges, including: the constrained budget of Commission on Restitution of Land Rights; the nature of the claims with multiple people claiming the same land, which causes delays; challenge of capacity, including poor capacity to do the research required by the Commission on Restitution of Land Rights; poor preparation of the people who appear before the Land Claims Court, which results in multiple postponements because claimants are not properly prepared; the attorneys themselves are poorly briefed, because there has been no opportunity to meet with the claimants for a proper briefing; the relationship between the Commission on Restitution of Land Rights and the Department as the Commission was independent and its policy, strategy and the planning should not be determined by the Department; delays in finalisation of cases due to current owners of the land having access to sophisticated means to protect themselves, but the claimants do not have the same resources. The Acting Land Claims Court Judge President felt that there was a lot more which the Commission on Restitution of Land Rights should be doing. Towards this it has partnered with both the University of South Africa and the Human Sciences Research Council. The Acting Judge President said that the Commission on Restitution of Land Rights would be able to do its work if it did not struggle with a lack of capacity to investigate and to prepare people to appear before the Land Claims Court.

Other topics covered by the SAHRC in its responses included the nature of gender mainstreaming and the manner it is implemented, the transfer process of responsibilities under the Promotion of Access to Information Act to the yet-to-be created information regulator and the nature and reasons for the Commission’s involvement in the Marikana Commission.

Meeting report

The Committee continued its discussion with the SAHRC from 29 April 2015.

Before handing over to the SAHRC, the Chairperson said the previous year the Committee had decided it was best to refer matters around the relations between various Chapter 9 institutions to the Forum for Institutions Supporting Democracy (FISD), convened by the Office of the Deputy Speaker. High on the FISD agenda was meant to be the resolution of overlapping mandates, however to date the Committee had not received information about it meeting. A further matter was the appropriate interpretation of independence and accountability in this context. Even among Members there are different understandings of what the independence and accountability of Chapter 9 institutions is supposed to mean. Some understood this independence as being free to make operational decisions, but being accountable to Parliament through its Committees. Accountability for Ministers and the President means that Parliament is entitled to robustly engage and put the difficult questions to these institutions. Given the differences in interpretation, he would have hoped that FISD had dealt with this matter, because unless this is dealt with some Chapter 9 institutions when robustly engaged may complain that this undermines the independence of the institution. He therefore asked the SAHRC to throw some light on whether FISD is engaging on this matter. This matter has created the perception in the public that there is a “war between Parliament and some Chapter 9 institutions”, yet there is no such war and it cannot be allowed. He suggested that perhaps a conference would be required, because differing interpretations of the Constitution would not be good for the country.
Adv Mabedle Lawrence Mushwana, SAHRC Chairperson, said he appreciated the opportunity to engage the Committee and answer the questions raised, because the SAHRC has limited time to interact with the Committee. This at times robs the Commission of receiving the Committee’s guidance on some issues. The heads of the various Chapter 9 institutions had met with the Speaker late 2014 and the Committee will be provided with a copy of the minutes which show a discussion of the matters raised by the Chairperson. On FISD, he said that it has met once in 2015 and independence is on the agenda, but it has not gone very far into interrogating the issues. When the time comes the SAHRC will be ready to contribute, because it is guided by the Paris Principles which the United Nations uses to determine when an institution is independent. However, there are differences internationally with the African Commission on Human and People’s Rights disagreeing with the Paris Principles. Therefore, there is a broader debate and what the Chapter 9 institutions need to be guided by is the Constitution and what their founding Acts say. FISD is functional and perhaps the Commission could propose that it meets to discuss independence.

The Chairperson asked whether there could be a session with both the heads of the Chapter 9 institutions and Members to engage with the concept, with each side giving its understanding and engage in a debate, perhaps with the aid of legal advice. Particularly as it is not in the interest of the county to have a Constitution which is not smoothly implemented because of debates and potential litigation over its interpretation.

Adv Mushwana suggested that if such a meeting occurs, it does so under the Speaker, because Chapter 9 institutions constitutionally operate through the Speaker. There was a desire from the Chapter 9 institutions that they would like to meet with Members and indicate their understandings of their mandates. He did not anticipate that there would be any objection to such a meeting.

The Chairperson said the Committee ought to request such a meeting from the Speaker so that Parliament can engage with Chapter 9 institutions, to foster their moving with a common understanding.

Mr S Swart (ACDP) said he thought this was a good idea, but it must not be forgotten that there are other Portfolio Committees which interact with Chapter 9 institutions. Therefore, it would be wise to request this meeting through the Speaker. He noted that the Kadar Asmal Report reviewing Chapter 9 institutions, is something that could also be discussed in such a forum, especially as it contains many recommendations relevant to the questions raised by the Chairperson. An example of the issue of independence at play was where the Committee requested information around the SAHRC’s involvement in the Marikana Commission and there was a robust debate, because the SAHRC had to justify its budget requests.

The Chairperson said the example raised by Mr Swart is good, because the information provided is satisfying its need to account and the Committee need not agree but this will not extend to interfering with the Commission’s decision. He felt it could not be correct that when a Chapter 9 institution reports on a matter that the Committee ought to just accept the information and not offer an opinion. The Committee has the right to express such opinions, without dictating to the Chapter 9 institutions what must be done.

Ms C Pilane-Majake (ANC) said in the interest of the country and Constitution, such consultation is important. She said it was important to review whatever has been done, lest this form of democracy become a runaway train leading to unintended consequences. She therefore agreed with the Chairperson and Mr Swart that a meeting be organised through the Speaker, particularly as this platform will also be able to grapple the overlapping mandates. This will help resolve some of the budgetary concerns Chapter 9 institutions have with some receiving more budget than others.

South African Human Rights Commission Responses to Member’s Questions
Adv Lawrence Mushwana noted each question and which person in the SAHRC delegation would answer:

The nature of the human rights based approach which the Commission wishes to entrench
Adv Mushwana answered the question about whether the SAHRC approach is cognisant of the African human rights instruments such as the African Charter on Human and People’s Rights. He said the Commission’s position was that the context of the SAHRC is informed by involvement on both regional and international levels, always bearing in mind the supremacy of the South African Constitution, which in itself recognises African principles. The Commission also looks at the customs and traditions of the people who are to be informed about the human rights based approach. Further responses, such as the one on Alternative Dispute Resolution (ADR) would extrapolate further. In reports produced by the Commission a chapter will often be dedicated to interpreting the situation according to Africa instruments, international treaties and the Constitution. Therefore, the Commission does not simply seek to impose foreign conceptualisations, without taking into account what is applicable to the people.

Questions about Alternative Dispute Resolution (ADR)
SAHRC Chief Executive Officer, Ms Lindiwe Khumalo, said the Commission uses a range of methods to resolve disputes including litigation, investigative hearings and ADR. The Commission’s litigation strategy is to first consider ADR, before it considers the others. This is so for a number of reasons, including that it is more accessible for poor people, it avoids the contention normally associated with litigation and it is a private process, although the outcome may be made public. The South African Human Rights Commission Act simply grants the Commission the power to conduct mediation, but does not stipulate how this is to take place, leaving it to draw up its own procedures and guidelines. Largely, the procedures have been modelled around international best practice, but this is not to say that in the conduct of the ADR, the Commission is not mindful of language and the parties’ culture as they appear. In many ways, modern ADR methods and approaches have similarities to African dispute resolution, such as the impartiality of the facilitator, mutual respect between the parties and limiting the number of people involved to those closely associated to the dispute. As she understood it, the question from the Committee was how disputes are handled in rural areas and whether there was an overlap or tension with the work of traditional dispute resolution. In some jurisdictions there is a clearly defined dual system, in South Africa. The African law is applied by traditional leaders and the SAHRC has its mandate. However, the Commission does not encroach into traditional settings and it hopes that once the Traditional Courts Bill is passed, many of the gaps will be filled between the SAHRC’s role and that of the traditional courts.

SAHRC public engagement, education and outreach
Ms Pregs Govender, SAHRC Deputy Chairperson, said the first question was around people knowing of their rights but not having received the requisite human rights education to be able to enforce them and the second question dealt with the Commission’s capacity to reach out. She said there are over 50 million people in the country and in comparison to the need that exists, the Commission is a miniscule institution, with its size and budget equivalent to a unit within a government department. Answering the question around enforcement of rights, she said the only way for the Commission to achieve human rights education is to work in partnership with many other institutions, including Parliament and civil society. To ensure that those with the power and responsibility are held to account for the delivery of those rights, education on constitutional rights is critical and Commissioners Mr Shafie Ameermia and Ms Lindiwe Mokate would expand. However, she said the most powerful way to educate is to ensure that the rights spoken about become a part of people’s lived reality and that people are provided with the information on how to claim their rights and ensure those who are responsible for delivering the rights are held to account. An example of this is the Commission receiving relatively few complaints around water before 2009, yet appalling violations of these rights were occurring around the country. While successfully investigating and resolving the first two complaints from communities around unenclosed toilets, the Commission linked these individual complaints to the systemic problem by finding that the Presidency must report the extent of the problem to the Commission along with government’s proactive plan to ensure these rights are satisfied. The Commission took the report it received to public hearings in marginalised areas, where communities and civil society spoke about the ways in which these rights were violated.  This process was hugely informative and the indivisibility interconnectedness of the right to water and dignity or the best interests of children was demonstrated. The Presidency and other departments were invited and responded directly about what government was going to do to ensure the enjoyment of constitutional rights. Another thing which came out was the role of big business, in relation to water usage, pollution and theft, particularly who was being prioritised and who was being criminalised. All Chapter 9 institutions were invited to be part of the process, with the Commission for Gender Equality presenting it gender and water report. Chapter Nine and Ten Institutions received complaints at these engagements. Efforts also included community media, to reach out as far as possible. The result of all this was that the complaints received by the SAHRC increased hugely, because the awareness that the right to water and sanitation were human rights increased. Recommendations were sent to Ministers and they responded. At present the report is with Parliament and the question would be to what extent can it use its oversight responsibility over the executive to push the matter forward. Her colleagues would speak to the formal education structures which need to introduce human rights training into the public service, but most important is for people to see their lives changing because of their rights. This allows them to see who is accountable and who is blocking delivery of the services, enabling them to pursue this.

Adv Mushwana said when the public hearings were started, the Commission did not come out saying that there needs to be a full complement of sanitation services everywhere. The aim was to have government commit to a structured plan with timeframes towards full delivery, because one thing which unsettles people is when they do not know when they will receive the services. While the Commission is conscious of the budgetary constraints, it is important to let the people know what to expect.

The Chairperson said Adv Mushwana was correct, because there is a rule for the interpretation of the Bill of Rights that implementation is progressive depending on the state resources available. The state has a duty to explain its plan, activities and limitations to the people. It was correct that if this is not done, people will eventually take to the streets. Therefore, Parliament needs to assist with this endeavour. Ms Govender had indicated that the report is with Parliament, yet Parliament implements through Committees. If the Committees do not have the report, then it is as good as non-existent and perhaps Parliament’s internal workings are to blame for this. A point had been raised in previous engagements that perhaps where reports are submitted they should also be sent to the relevant Committees, so that they do not have to wait for the Office of the Speaker.

Ms Govender agreed and said she believed the report under discussion has been submitted to both this Committee and the Portfolio Committee on Water and Sanitation.

The Chairperson said it would be ensured that the Committee Secretaries circulate the reports as and when they arrive.

Implementation of SAHRC recommendations, specifically the xenophobia reports
Mr Siyasanga Giyose, Head: Strategic Support at SAHRC, said the questions raised around the implementation of report recommendations spoke to the Commission’s indications that it was having difficulty in securing implementation by respective government departments. Specifically, it was asked whether this remained a challenge for the SAHRC and also in relation to xenophobic violence re-emerging. The answer would generally be yes, challenges with implementation remain. Further, this extends to a lack of responsiveness from government departments where the Commission seeks information around the delivery of certain constitutional rights. The Commission’s response is it is looking at consolidating all its report recommendations and assessing which recommendations have been implemented, whether there has been progress and to what extent. It will highlight the outstanding areas where there are recommendations. This will be brought to the attention of the Committee, given that the Committee has indicated it is willing to support the SAHRC regarding implementation. The request would then be to have the Justice Portfolio Committee engage the relevant parliamentary committees which conduct oversight over the particular government departments and entities. A further request would be to have Members attend and participate in some of the Commission’s events, where some of its recommendations are born from the consultative process. This would enhance the understanding of Parliament around where the recommendations come from and assist in their supporting the implementation.

Turning to the report on xenophobia, Mr Giyose said a similar trend was seen in the implementation of these recommendations. The recommendations included a coordinated inter-departmental approach to deal with xenophobia. The SAHRC is currently doing an assessment of how these specific recommendations have been taken on by departments and the preliminary results are showing that these have not been implemented to a desirable extent. In one engagement with the Committee a suggestion was made that the Commission provide executive summaries of the reports and recommendations, to make it easier for the Committee to assist the Commission, and this is being taken on board.

Adv Mushwana added that a big challenge which the Commission faced with the xenophobia report was that it did not deal with the causes of xenophobic violence. Mainly because the Commission was working in collaboration with other civil society organisations and the Commission was tasked to deal with whether perpetrators of xenophobic violence should receive impunity or be punished. The Commission’s current investigation is following this course and is collaborating with the working group from the UN structures. During the course of the year the Commission has been holding sessions with small businesses, specifically spaza shops in townships, where locals and foreign nationals would come into one venue and talk and share their experiences.

The Chairperson said the SAHRC would agree that its collaboration with government is good, but it has not investigated the causes of xenophobia, because this would provide knowledge of the practical steps which can be taken. Off the cuff he would say that education of the people should be the number one priority, because if people know about the rights of others, the limitations on their own rights and the remedies available then such incidents could be avoided. He had not yet heard to what extent the SAHRC is going to dedicate itself to educating the people. In his opinion the easiest way to access people was through their own organisations, such as youth or women’s organisations. The question would be what can the SAHRC do to activate community based structures to enable them to do the work for themselves.

Adv Mushwana said within the Commission there is a desk for foreign nationals, under the Section 11 Committee, where there is a meeting of experts and it also consists of the SAHRC Chairperson, the UN, civil society and organisations of foreign nationals. The purpose is to teach and determine in what areas the Commission can go into to intervene. The structure is in place and perhaps it ought to be beefed up to allow it to penetrate rural areas which have not been targeted due to financial constraints. Educational workshops have been held together with the UN and this is in close collaboration with community structures. His point was that the structure is there, but it is not yet doing enough.

Mr Swart said while some recommendations from the 2010 xenophobia report were implemented, the Commission’s press release indicates that most of them were not. It is of course speculation to ask to what extent the present wave of violence would have occurred had the recommendations been implemented. It is interesting that some of the recommendations included training public officials, deepening public awareness, putting in place mechanisms to ensure services are provided, pragmatic reforms of immigration policy, fighting corruption in the managing of migrants and refugees and facilitating better access to justice for non-nationals. There seems to be quite a lot indicated in the 2010 report that has not been done and perhaps the present violence would be worse, had the little that has been implemented, not been done. He felt the early warning system would have been useful. Particularly as he felt there had been a deficiency in crime intelligence when the violence started brewing. This speaks to the broader concern of Parliament looking at reports and engaging with them.

Ms Pilane-Majake said she was happy to note that the previous report did not deal with matters like the causes of xenophobic violence, because xenophobia has been dealt with in a holistic manner. She was interested to know whether the UN High Commission on Human Rights shared information on migration patterns with the SAHRC, because this is a structure which could help South Africa. As a new democracy South Africa could learn from other democracies which have thrived off of migration. The UN could inform South Africa about the benefits and threats from migration and what lessons have been learnt from other democracies, so that moving forward government will be in a position to develop a model which will work for South Africa. Looking at recommendations which speak to the amendment of immigration policies needing to be implemented from an informed position and this information would add a lot of value to the policies implemented. A place to start would be how to deal with porous borders in a way that allows compliance with the UN instruments around refugees and migrants. An African model should be looked for, particularly if there are success stories.

Ms S Shope-Sithole (ANC) said unless people, particularly politicians, start speaking about South Africa in the correct way, problems such as xenophobia will not be dealt with. At time politicians make utterances which are not conducive to peaceful coexistence of the people in the country. Coming to the SAHRC, South Africa has many people who are not able to read anything, let alone English. There are many reports which can be read by educated people and the Commission needs to be proactive and ensure that once a report is produced it is not only left up to those with the initiative to read those reports. Platforms such as community radio need to be used. For example, the SAHRC could talk about how South Africans were treated in Tanzania during the struggle, so that the youth of today know that the relationship with foreign nationals does not start today with their presence in South Africa. The relationship is longstanding and during the “dark days they were our friends”. The message needs to go out in vernacular, to ensure that the attention of those who cannot read, is captured. Perhaps small advertisements in newspapers could go towards the same end. Lastly, Members of Parliament when they speak should give the reasons why people are coming to South Africa and this is because they view South Africa as a success story and a place of security and opportunity. This message is not being given to the people and people need to stop only speaking of negativity within the country.

The Chairperson said he did not believe that there were any Chapter 9 institutions which were merely “nice to haves” and these institutions were established to strengthen and support democracy. If government departments are not responsive, then this is a serious matter, because it calls into question their relevance. In the meeting which is proposed with the Chapter 9 institutions, the question of responsiveness needs to be put on the agenda, as lack of responsiveness may tempt Chapter 9 institutions to go to court to have their recommendations enforced. The Committee should help fight this temptation by supporting these institutions and perhaps an audit of the recommendations should be done. Parliament has a duty to ensure that the recommendations of Chapter 9 institutions must be acted upon.

Adv Mushwana said he had been intrigued by Ms Pilane-Majake’s point about finding a success story in Africa, because Africans die at sea trying to migrate to Europe, and therefore it is a major challenge. On the warning about court, he said the Commission has been to court with the Department of Home Affairs many times and presently there is a judgement on the Lindela Repatriation Centre where the court has given directives. Refugee centres have been closed where foreign nationals try to access documentation and because of the never ending delays, the Commission had to go to court to force government to open these centres. Thanks must be given to the present Minister of Home Affairs for withdrawing the impending appeal to that judgement after having read it, because he realised that there was a serious problem. The Commission is working with the Minister and Department of Home Affairs to improve the situation of people who are detained and a desk within the SAHRC is being created in line with the judgement.

Effectiveness and impact of communications and the language used in information dissemination
Mr Bokankatla Malatji, SAHRC Commissioner, said the Commission tries to ensure that language is used as an effective tool to educate people. It is also realised that by recognising a language, one also recognises the human rights of people. Therefore, as far as possible, the language which would be the most effective and have the greatest impact on the target audience should be used.  The Commission as far as courts are concerned, agrees that predominantly English is used. However, it is not within the purview of the SAHRC to dictate what language is used in courts. What can be done is to advise the relevant entity, in this case the Office of the Chief Justice, that it is desirable that at some point the proceedings are conducted in the language of the person in court. The Commission has prioritised sign language as a language of communication, because human rights education will not be effective unless the SAHRC is sensitive to the language requirements of a particular audience. The Commission has trained all its education officers in sign language, so that they may effectively communicate with the various communities they visit. Beyond this, the promotional materials are written in all the languages of South Africa and Braille. Thanks must be given to the Department of Justice and Constitutional Development (DoJ) for the copies of the Constitution in Braille, which are to be disseminated.

Mr L Mpumlwana (ANC) asked if it was possible that when the SAHRC writes to a department that the chairperson of the relevant parliamentary committee is also notified, particularly if the department is being taken to court, to allow the parliamentary committee to engage with the department.

Ms Khumalo said that when the Commission considered its involvement in the Marikana Commission it had looked at the terms of reference for the Farlam Commission and identified that it narrowly focused on culpability issues. As an institution concerned with human rights and human dignity, it thought its presence at the Farlam Commission would be useful in two different ways. First, to introduce an expansive interpretation of the events and introduce quality legal sources for the consideration of the Farlam Commission, particularly international law sources, the constitutional angle and expert witnesses. Second, the SAHRC felt it could introduce a human dimension and invite the Commission to look at the underlying socio-economic concerns of not only the workers, but the broader surrounding communities, particularly, the role on the mining companies in protecting the rights of workers and their communities. The question the Committee raised related to the report and when it can expect such a report. The SAHRC does not intend to produce a report on its submissions, although it could share the submissions themselves. It will not produce and independent report and it awaits the Farlam Commission report and on this basis it will look at the findings and recommendations to establish the extent to which its concerns have been taken on board. If they have not, then perhaps it will consider an additional element. 

The Chairperson asked if it would be necessary for the SAHRC to give the Committee its submissions, because these were to support the work of the Farlam Commission. Secondly, if the Farlam Commission finalises the report and makes recommendations will it be necessary for the SAHRC to take that report and craft another way forward. Should it not be accepted that the Farlam Commission has done its work, made recommendations and those charged with implementing them, should do the work. Should the witnesses and people who made submissions really arrogate the responsibility for following up on outcomes for themselves?

Adv Mushwana said the Chairperson’s question has been asked within the SAHRC. The Commission was concerned that the terms of reference for the Farlam Commission did not speak to the violations of rights. Therefore, there was a concern that nothing was going to be presented to the Farlam Commission around the socio-economic conditions which people around Marikana were living in and to some extent these conditions had led to the strike action. He hoped that in the report of the Farlam Commision these concerns were reflected, because the conditions which people live in around the mine were horrible. If these conditions are not recognised and attended to, then they may come back to bite South Africa. He did not want to anticipate the findings of the Farlam Commission and perhaps a better answer would be given once these are received.

The Chairperson said while bringing up Marikana can re-open wounds, it also highlighted the socio-economic conditions of the people. However, these problems are not only experienced at Marikana and perhaps the conditions should be looked at across the country. He thought the approach made sense, but a broader view should be taken.

Promotion of Access to Information Act (PAIA)
Ms Govender said the question related to the handover of responsibility to the Information Regulator and what the process is on the side of the Commission. Firstly, the timeframes for the establishment of the Information Regulator are dependent on the DoJ. However, SAHRC is not aware of the Department’s decision on this and it would be helpful for the Committee to follow up with the Department, for its own clarity, as well as the Commission’s. The SAHRC is drafting a handover framework as part of the 2015/16 Annual Performance Plan and once the Information Regulator is established this will be transferred.  The compliance and regulatory function will be transferred, but the SAHRC will retain the right to advocate for access to information as part of its constitutional mandate. Therefore, for example the PAIA Unit is looking at what its role will be regarding one of the key recommendations of the water and sanitation report in ensuring that budgets, contracts and integrated development plans (IDPs) are transparent and accessible. This is broader than the right to sanitation, relating to every right. Therefore, the PAIA Unit will be training people in government around what their responsibilities under PAIA are and what the law says about transparency. There is a role which the PAIA Unit will continue to play and this is only one example.

Adv Mushwana added that the lack of clarity on when the Information Regulator will be established is a problem, because it affects decisions around retaining staff and allocating the budget.

The Chairperson said he thought the role of the SAHRC was to support the Department and therefore there would be nothing wrong in it taking the initiative and making the recommendations.

Ms Govender said the SAHRC has engaged the Department and this is an area where the Committee could be of vital assistance in ensuring the Department understand the urgency.

The Chairperson said if there is an omission of something that is done, then it is part of the Committee’s oversight responsibility to ensure that the Department does what is required. However, if Members are not aware of the challenges faced then they will not be able to assist. Therefore the SAHRC should not wait to be called before the Committee to communicate matters which it ought to be assisting with. He said the SAHRC should feel free to do so and this is the type of relationship strengthening which is desired.

Mr Swart said it may be helpful if the SAHRC could provide the Committee with a quarterly report on the challenges it faces, which will allow the Committee to follow up outside of formal engagements such as the present. He had heard of a lack of compliance for many years and was trying to think of a mechanism to address this problem. He had raised the question on PAIA, but he had not been aware of the deeper issue which relates to the Protection of Personal Information Act and perhaps there are outstanding regulations there as well. The Committee needs to create a mechanism and secondly the Committee needs to raise these issues with the Department in its recommendations.

The Chairperson said Members would be happy to know that the SAHRC has been proactive, having already sent a quarterly report, which will be circulated.

Ms Govender said the quarterly updates are useful, yet the Committee’s oversight over the executive has been a matter which has been consistently raised by the SAHRC, particularly the non-compliance with PAIA. At one of the meetings, the Committee had given the SAHRC an undertaking to follow this up and to have a plan to ensure that the executive would change this situation. She felt this would continue to be an important matter, regardless of the transfer, because PAIA non-compliance has a huge impact on socio-economic rights particularly. The SAHRC would therefore appreciate the Committee’s persistent engagement on this.

The Chairperson said the SAHRC’s frustrations would apply to other Chapter 9 institutions and the Committee’s position is that it would like to support all of these institutions. It is even in the interest of the departments involved and perhaps they need to be reminded of certain things which need to be done.

Mr Swart said the non-compliance is a broader issue than the handover to the Information Regulator. Ms Govender is correct that an undertaking was given, following a discussion about the use of the SAHRC subpoena powers and about the SAHRC wanting to avoid an adversarial relationship with government. He was glad that this had been raised again and added to this was the problems with the handover. He asked if the SAHRC had re-thought the issue of using subpoenas and whether this has helped.

The Chairperson thought Mr Swart had mentioned avoiding adversarial relations and subpoenas should be a last resort. He felt a culture of performance should be ingrained, so that people are aware of their responsibilities and the need to discharge them. Subpoenas mean that officials will have to suspend their office work and there may be punitive measures. People want delivery and this may not be aided by contestation. The power is the SAHRC’s constitutional prerogative, but he urged the SAHRC to work in the spirit of the Constitution towards supporting each other, in the interest of delivery to the people.

Mr Swart agreed with the sentiments of the Chairperson, because it was incumbent on the Committee to support Chapter 9 institutions so that they do not have to resort to subpoenas. The point is that the Committee has not assisted, despite the SAHRC raising the matter in the past.

Ms Govender said the SAHRC does make use of its subpoena powers for certain matters, but there are limitations to these powers. The SAHRC would therefore appreciate the intervention of the Committee in a decisive manner, because this is in need of a serious turnaround. Even if the particular matter of legislative powers moves over to the Information Regulator, the broader issue of the substantive right to information and its impact on socio-economic rights, is one where there is a common concern.

Xenophobia attacks and International Criminal Court
Adv Mushwana said on the issue of the reporting of King Goodwill Zwelethini to the International Criminal Court (ICC) that the SAHRC’s attitude is that this is what the media is reporting, but it has not seen anything substantive. Knowing the jurisdiction of the ICC, the SAHRC is waiting to see what happens. The SAHRC is ready to respond, but nothing has come forward impeding its work and this is moving forward. On whether there is a strategy on xenophobia, he said the approach is that the recommendations of the 2008 report would go far in assisting. So far the SAHRC has a draft document which supports the 2008 report to respond to the current situation. This will go towards strengthening the capacity of the SAHRC, civil society and government.

The Chairperson said there was a UN Conference on Racism and later there was an investigation of racism in universities. Racism, like religious intolerance, is a problem and he had heard of a community which is not allowing Muslim people to build a mosque because of concerns about noise. Therefore racism continues to be a problem, as well as religious intolerance and now added to this is xenophobia. The question is whether the SAHRC has a comprehensive plan to address all three issues. This is why he had always maintained that South Africa’s human rights education is inadequate, because there are several bodies charged with the protection of human rights which have educational programmes around their specific areas of competence. What will tarnish the image of the country is a lack of impact by all these bodies. Perhaps the FISD could also help to address these problems and ensure that the programmes have an impact.

Adv Mushwana took the point. He noted the number of cases which are being brought to the SAHRC. On there being a proliferation of human rights bodies, at times the SAHRC has asked itself who does what. Regarding an approach for the country, this remains amorphous and disjointed. Perhaps the point being raised will be looked at by the SAHRC and a proposal will be presented to the Committee and FISD. Many countries are still grappling with racism and the best approach is to regularly engage and have steps in place when a challenge arises. 

Mr Swart said when he used to litigate as a lawyer, there would be people who would forum shop for jurisdiction trying to find a court amenable to their case. He understood that this was a danger for Chapter 9 institutions, with overlapping mandates, and he was aware of instances of people going from one Chapter 9 institutions to another, looking for them to accept their case. Perhaps this is something which Chapter 9 institutions should be mindful of.

Adv Mushwana said he had not mentioned the National Action Plan on Racism, which is still not in place, despite the potential for having a document which instructs institutions on how to approach racism. In the past the SAHRC used to work closely with the DoJ, until the question arose about how the SAHRC would be able to properly engage in monitoring if it was embroiled in operational matters. The Department has not taken the National Action Plan forward and it has again come to the SAHRC for assistance, but the SAHRC maintains that it is doing what it is meant to do in terms of the document. A draft has been presented and the SAHRC is doing what is expected which is commenting and making suggestions on the document. This is an important document and it is shameful that South Africa has not moved on this aspect. On forum shopping, he said it is under discussion at FISD and it is being determined how various institutions supporting democracy, will be made aware of a particular case being handled by another institution.

Programme on Access to Justice launched in April
Adv Shafie Ameermia, SAHRC Commissioner, said he would begin by providing some background on what is meant by access to justice in the African context. This goes back to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights and is codified in section 34 of the Constitution. Section 34 is read with section 7 of the Constitution which emphasises that the Bill of Rights is the cornerstone of democracy in South Africa and enshrines the rights of all people in the country, while affirming the values of human dignity, equality and freedom. The right of access to justice is broadly defined, because it stems from the realisation that the right of access to justice is not only there to protect the income and livelihood of people, but also promotes people’s capabilities, choices and power. The right of access to justice can be seen as giving content to the right to development and facilitates addressing broader issues of marginalisation of vulnerable groups in society. The question is how one goes about giving practical teeth to this concept of access to justice. The first thing is physical access to copies of the Constitution and how many people have access to this. The SAHRC therefore entered into a collaborative partnership with various stakeholders and the Department of Justice and Constitutional Development. This led to copies of Chapters 1 and 2 being produced, with the contact details of various institutions for enforcing rights listed at the back. In collaboration with the Department of Basic Education and DoJ, copies of these books were delivered to 81 districts throughout the country and therefore every public school throughout the country has a copy of this reduced version of the Constitution. 

The SAHRC felt the next step was to go to the grassroots level and through the ‘Know Your Constitution’ campaign, which underpinned the access to justice efforts, high school children would first learn civil and political rights and their importance. In later years they would be taught the importance of socio-economic rights. The idea behind the national schools moot competition was that children would be able to grapple, practically, with how the values of the Bill of Rights should be addressed. It was also thought that perhaps children should recite the preamble of the Constitution in school assemblies, because if there is no knowledge of South Africa’s history then problems are created. The issue of how the Bill of Rights ought to be taught in schools was also re-examined, because it has to be decided whether this is just one of the course components under Life Orientation or should it be a separate module to be more effective. For example the SAHRC has placed the Bill of Rights in all official languages on its website and on Mxit, because children are good with cellular phones and electronic access could add value.  To reach 50 million people, the electronic medium could be effective and nobody will be able to say they do not know what their rights are; this would then lead to the need to engage with the process of informing people about the concomitant responsibilities. What the SAHRC decided to do, along with the Foundation for Human Rights, was to engage with how the Constitution can be supplied to all 278 municipal libraries. Further, the SAHRC would like to go further and ensure every school and library has a set of Constitutions in all eleven official languages. This would be the basis of allowing people to have access to justice, because before people can enforce their rights, they have to know what they are.

Adv Ameermia said that before the colloquium planned for June 2015 in the Free State, the SAHRC had to meet with a range of stakeholders including the organised legal profession, paralegals, law clinics and community based organisation to forge linkages which will help to start teaching people about the Bill of Rights. It was also thought that teachers at institutions of higher learning and in service teachers ought to know how to engage on the Bill of Rights and to this end the various law faculties were engaged. The colloquium is planned for the Free State to combat the impression that everything happens in Gauteng and the Western Cape. The colloquium was decided on, rather than a conference, because the SAHRC felt alternative routes to access justice, courts and human rights education need to be found. The colloquium would help find these alternative routes and this would give a platform for the Human Rights Education Unit within the SAHRC to contribute to the development of a sustainable human rights culture within South Africa and to conduct human rights outreach on access to justice. The colloquium would allow a host of actors to come on board and allow the SAHRC to learn from the experiences of community based organisations and the paralegal movement. In the work towards the colloquium an important case arose, with immense strategic impact, where Stellenbosch University discovered that farm workers were being exploited by micro-lenders and this essentially converted these people into economic slavery. He had asked himself when he went to court whether a right like human dignity can be commodified and he felt it could not as an inalienable human right. The involvement of the SAHRC in that matter yielded a tremendous socio-economic achievement, because it was not only farm workers who were the victims of micro-lenders, with the beneficiaries of social development grants also falling victim. The 2030 vision contained in the National Development Plan, is essentially based on socio-economic rights, but to realise this money is needed. If the state does not open its coffers to make this a reality, there will not be sufficient funds and this could render South Africa’s very progressive Constitution meaningless to the vulnerable and poor. These are the kinds of issues which SAHRC had picked up in its endeavours and the Marikana issue was but a microcosm of the larger problem. Another thing which came out the case regarding the micro-lenders was that they had found a loophole in the Magistrates Court Act, where a clerk was given the power to rubber stamp transactions, drastically affecting people’s lives. There has been a Bill in Parliament to close the gaps in section 65 of the Magistrates Court Act which has been sparked following prompting by the University of Pretoria Law Clinic in 2008. The DoJ as a respondent in that matter had indicated that the Bill is still with Parliament and while this seven year process continues, people continue to become more and more marginalised. This also creates resentment, because it can be seen as a poverty trap. He said an example of how the scheme worked is where a farm worker who is a single mother and sole breadwinner borrowed R250 and ended up paying more than R7500. This case also speaks to the SAHRC’s annual thematic area of business and human rights and these are the issues which need to be raised when it is said that war is being declared on poverty.

The Chairperson said the examples which were given were very helpful, however did the route of colloquiums and speeches hold the answer. Should the focus not be on combating the practical issues affecting people. For instance, socio-economic rights cannot be spoken of without access to land and its natural resources. He knew that the Foundation for Human Rights’ focus was on socio-economic rights, but it could be using its resources to help expedite land claims. Particularly, as people have lodged claims years ago and when they eventually reach court they face land owners who have money to defend themselves. This results in no progress with this burning issue and why should it not be a special focus on land, because without it, it will not be possible to provide socio-economic rights. If he were in the shoes of the SAHRC, he would feel the right course has been taken, but the bigger issue of land reform needs to be addressed.

Adv Mushwana asked for Ms Mokate to be allowed to deal with the land issue, because it was one of the questions raised.

Land issue
Ms Mokate said the SAHRC is concerned with the issues referred to by the Chairperson. As it has received about 183 complaints relating to section 25 of the Constitution, it decided to hold a hearing to look at what challenges are facing the institutions, including the Land Claims Court (LCC), the Department of Rural Development and Land Reform (DRDLR) and Commission on Restitution of Land Rights (CRLR), meant to facilitate this process. A report on the hearing, chaired by Commissioner Janet Love, was released in 2014 and this had been forwarded to the Committee electronically. The parties involved put forward certain challenges, including the constrained budget of CRLR, which can only budget on the basis of the Medium Term Expenditure Framework and the allocation being received, is a lot less than what was expected. Further, the nature of the claims being handled, with multiple people claiming the same land, causes delays. She wanted to emphasise the challenge of capacity, including poor capacity to do the research required by the CRLR. Associated with this is the poor preparation of the people who appear before the LCC, which results in multiple postponements because claimants are not properly prepared. The attorneys themselves are poorly briefed, because there has been no opportunity to meet with the claimants for a proper briefing. Another theme which came out strongly was the relationship between the CRLR and the DRDLR because the CRLR was established as independent, although it has a relationship to the DRDLR. The policy, strategy and the plan of what the CRLR was to do being determined by the DRDLR, was an issue. As it was clear that it was very difficult to determine the role of the CRLR, particularly what its responsibilities were and what it was supposed to do. There was also a problem with the high volume of cases and the reason for the number of cases before the LCC was the complications in the cases. DRDLR and CRLR both pointed out that because the cases take a long time to finalise they would at times be taken to court, because the cases are not moving fast enough. A reason for this is that the current owners of the land have access to sophisticated means to protect themselves, but the claimants do not have the same resources. This adds to the difficulties faced by the CRLR itself. What was found when meeting with the Acting Judge, was that she felt that there was a lot more which the CRLR should be doing. Towards this it has partnered with both the University of South Africa and the Human Sciences Research Council. The Acting Judge also felt that the CRLR would be able to do its work if it did not struggle with a lack of capacity to investigate and to prepare people to appear before the LCC.

The Chairperson said this is a serious matter, because it means that people lose their right to land due to poor capacity within the CRLR and this means their food security is endangered, and poverty and unemployment also continue. He noted communities which he personally knew who were living in literal exile, under different chiefs and he felt these sorts of issues should be prioritised for investigation. He was happy that the SAHRC had done good work which the Committee was not yet aware of and this is the sort of information which it needs, because problems will not be solved by giving money to institutions to promote human rights when the practical situation on the ground needs to be tackled.

Mr Mpumlwana said he was shocked by what Mr Ameermia had said, because there are already laws which make it unlawful to charge interest on interest and there is also the National Credit Act which is meant to protect people. The problem is that people do not know about these forms of protection, which also prohibits people taking identity documents or pension cards. He therefore suggested the SAHRC go onto local radio and explain these things to people. The National Credit Regulator could also be of assistance. He thought it “pathetic” that the SAHRC is saying people cannot be protected.

Adv Mushwana said land is seriously prioritised and perhaps the commissioners would debate the nature of the engagement under Access To Justice to see if they can add value.

Mr Ameermia said the Department of Trade and Industry has done a lot of advocacy work around the National Credit Act. This Act, in his understanding, saved South Africa from the full effect of the global recession, but what it did not do was regulate the micro-lending industry. It left people to the whims and fancies of micro-lenders, who would at times charge 70% interest. What makes it worse is that the micro-lenders found a gap in section 65 of the Magistrates Court Act. Section 65 allowed micro-lenders to institute legal proceedings against a debtor in jurisdictions to which the debtors could not afford to travel, under certain circumstances. He noted that when the court case which the SAHRC was involved in was before the court, there were eighteen respondents, mainly micro-lenders, represented by five senior counsel and the people who have to face these kinds of resources, cannot even afford to buy bread. He took Mr Mpumlwana’s point, but noted that access to justice was really about poor people being able to secure justice and remedies through the court system and alternative dispute resolution mechanisms. This is why the SAHRC was engaging with paralegals and community organisations.

Mr Swart said he would like the information about the loophole in section 65. If the Bill was with Parliament, it should be being dealt with by this Committee. He was not aware of any amendment to section 65 before the Committee and the Bill may have been tabled in a previous Parliament. If it is a matter of great importance, then the Committee will be able to deal with it quickly, but it needs information. He asked if there had been a judgement in the case and for a short briefing in writing about the matter.

Mr Ameermia said the judgement has been reserved, with closing arguments having been heard in the Western Cape High Court before Judge Siraj Desai. Judgment is being awaited and it was expected at the end of May but it is more likely to be the end of June. The SAHRC had a case summary and it could provide this to the Committee.

Mr Swart said what is really required is the suggested change to the legislation, rather than the pleadings. The outcome of the judgment has to be awaited and then the Minister of Justice and Correctional Services can be engaged to look into the amendment.

The Chairperson asked if the SAHRC does not have a regular publication which captures issues such as this one, with recommendations, which can be circulated. There are various legislatures and Parliament and Members tend to be busy and it is important that such gross violations of human rights are brought to their attention, particularly if a legislative amendment can fix the problem.

Ms Shope-Sithole asked for details on the problems with the National Credit Act and the Magistrates Court Act, because she was very concerned about micro-lenders. If they are allowed to persist in their behaviour the alleviation of poverty will be impossible. She asked for Mr Ameermia’s contact details so that she could personally follow this up. She also wanted to bring in the angle of the Women’s League, because  she felt women were slaves of people who lend them money at high interest rates.

Mr Swart asked that the information be circulated to the Committee, because he was also interested in it.

The Chairperson said the SAHRC has long offered to liaise and the information ought to be sent to the office of the Chairperson.

Gender mainstreaming plans
Ms Govender said the SAHRC’s mandate around treaty bodies includes the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but the Commission for Gender Equality has primary mandate and budget for CEDAW. While the Commission for Gender Equality has the primary mandate, every institution has the responsibility to mainstream gender. The question is how does gender mainstreaming work and what does it mean. It is known that discrimination, exploitation and prejudice are layered in terms of factors such as race, class, age, gender, disability, sexual orientation and geographic location. The reality is that the majority of the unemployed and the poor bearing the brunt of institutional and sexualised violence are female, particularly women in the former homelands and townships. When she had compiled South Africa’s Country Report for the Beijing Convention in 1994, the draft she received from apartheid bureaucrats completely omitted statistics on women in apartheid homelands for example.

The question is how is an understanding of the impact of unequal gender roles, responsibilities and relationships of power on all human rights mainstreamed. To take water and sanitation, the absence of access to this affects all human rights including dignity, to education and the best interests of the child, however it has a particular impact on girls when they reach puberty because this affects their school attendance. The SAHRC has tried to express this in its reports and in dealing with complaints, but it was felt that a more systematic approach was required. The SAHRC has this year trained all its senior managers on how this is to be done. This training lasted a week and was attended by all senior managers across divisions, from all the provinces. It also analysed the processes, policies and budgets for gender mainstreaming generally. It was seen that the budgets for employment equity and specially targeted gender programmes constituted less than 2% of budgets across the world. Therefore the mainstreaming aspect, which taps into the general budget needs to be looked at to see how it is being spent to meet employment equity targets. A practical example which came out during the training was that most of the female cleaning staff at the various offices came through a labour broker, who took part of their salaries as a fee. The SAHRC therefore applied gender mainstreaming to the budget and cancelled the contract with the labour broker, meaning the cleaning staff now receive their full salary. These are the types of practical ways in which gender mainstreaming can be conducted.

On the question of protests, she said a pamphlet had been circulated to Members which was also available on the SAHRC website on human rights in community protests. There was also one specifically on torture. Just as the SAHRC had requested that government have a proactive plan to deal with water and sanitation, it had requested the same around frustrations which are going to flare up. Government’s plan should not be to react to flare ups, but should rather prevent them.  At a meeting in Mpumalanga one of the first people who stood up to speak said they had used every single legal route to address their problem and nothing has succeeded. As the meeting was conducted in the city hall, many young people were using the opportunity to protest about the lack of water. The overwhelming majority of protests are peaceful, the SAHRC has engaged with the South African Police Service on public order policing.

Ms Pilane-Majake commented on Mr Ameermia’s suggestion that children recite the preamble of the Constitution, saying the Moral Regeneration Movement was in the process of requesting government to have children recite the charter of positive values. Perhaps the SAHRC should liaise with the Moral Regeneration Movement, so that the country can come up with one viable option. Further, on education of communities often the talk is of access to rights, yet the people already understand that they have rights which they need to access and this is a cause of service delivery protests and the like. It is also important to ensure that people understand that rights are coupled with responsibilities, because what is being found is that South Africa is beginning to have a culture of dependency and entitlement. When the government implements measures such as grants or free housing this is supposed to be a safety net created in the context of socio-economic rights.

Ms Govender said the issue of entitlement and dependency needs a deeper discussion, because she felt that it was deeply problematic that this is the frame being used. These are rights which people have under our Constitution and this is about an economic system in which those who are wealthy are better able to exploit their resources. She raised the example of how 45 mining companies in South Africa presently operate without water usage licenses, according to the Minister of Water Affairs, yet these companies pollute water, and consume large quantities of it. This occurs in various sectors including land and other natural resources and a discussion on who is really being subsidised in South Africa needs to be had.

Are children being taught about their rights
Ms Mokate said the short answer is that children are not being taught about their rights. There are plans within the Department of Basic Education to use Life Orientation to do this. Around 12 years ago the SAHRC developed modules through which children could be taught, but this was found to be unsustainable within the resources of the SAHRC. Therefore, it is important that this be picked up by institutions which have better resources than the SAHRC. The work which has already been done can be used by any institution with the resources to implement. She agreed that the Life Orientation slot would have been a good solution, except for the fact that at present the teachers of this subject are not trained to teach children about their rights. The SAHRC had developed readers and child-friendly provisions of the Bill of Rights and these were produced in several vernacular languages. She suggested that in future engagements with the Committee the proposal of creating an ombudsperson for children be disucssed. She knew the Western Cape was currently holding hearings on this and she would like the Committee to debate this issue. Before the end of apartheid when consultations were being done on children’s issues, the idea of having a children’s ombud was discussed and it was decided that there should be provision for this within the SAHRC and there be a commissioner with a specific responsibly for children. The way it has worked out is not ideal, because the function is not funded and the position that is there is not a commissioner for children with a budget. This is why the idea of having a children’s ombud is being raised again. Perhaps at the next engagement, the SAHRC could present the recommendations of the UN Committee on the Rights of the Child and the recently completed African Union Committee of Experts on Welfare and the Rights of the Child, to help produce an informed decision.

The Chairperson said it would perhaps be better to make use of existing structures, because there is already the National Children’s Rights Committee which is rooted in the people. The ombuds office would be in urban areas and require resources. Therefore community structures ought to be supported. He noted that the National Interfaith Council of South Africa was signing a partnership with the Department of Basic Education and perhaps the agreement could be signed with the SAHRC, because structures like churches could be used to help teach children about their rights. Further, he said this engagement has really helped him to understand Chapter 9 institutions role in strengthening and supporting the Committee.

Ms Shope-Sithole said more time is needed with the SAHRC, particularly in looking into protecting the rights of women.

Ms M Mothapo (ANC) was impressed with the pamphlet on protests and asked that the SAHRC produce it in other official languages.

The Chairperson said a good relationship has been established with the SAHRC and he asked for it to be proactive in bringing matters to the attention of the Committee. He then declared the meeting adjourned.


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