Filling of vacancy on South African Human Rights Commission: short-listing

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Justice and Correctional Services

11 August 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The Committee agreed that the issue of Traditional Courts must be resolved soon, and that the length of the process is unacceptable. The Committee admonished the events of the weekend involving the burning of a church in response to transgressions by its pastor. However, the Committee also moved to have discussion on the balance of government’s responsibility to both guard religious freedom and protect its citizens from harm. The Committee further noted that when it passed the Legal Practice Bill, it had removed the section on paralegals; as this matter would be introduced in a separate legislation. However, there has been no movement on this matter and a call was made for the Department to address this issue urgently.

Some members expressed concern that the position for Human Rights Commissioner has not been filled since March. The Committee agreed that further information was needed on the candidates, including background documents and other details. The Committee felt disempowered from making an informed decision with the current lack of information on the short list candidates. The Chairperson, with the consent of the Committee, moved to fill this vacancy along with another vacancy that will occur in five months. The Chairperson also promised to have his office fix a few issues found in the documents presented to the Committee. 

Meeting report

The Chairperson welcomed everyone and stated that apologies had been received from Mr J Malema (EFF) and Mr M Redelinghuys (DA). In addition, Ms G Breytenbach (DA) submitted apologies on behalf of Mr J Selfe (DA).

Paralegal Legislation, Traditional Courts Bill, Freedom of Religion
The Chairperson stated that the Committee was doing well and always has a quorum. It had active multi-party participation and Members were not forced to vote as the Committee reached its decisions by consensus. However, there was one thing that the Committee needed to focus on - it made commitments and it needed to live up these. For instance, when it passed the Legal Practice Bill, the Committee removed the section on paralegals; as this matter would be introduced in a separate legislation. The Deputy Minister and the Chairperson had been invited to address two conferences on paralegal legislation but even now the Committee has not seen a draft bill. In addition, when the Department had briefed the Committee, its reference to paralegal legislation had nothing to do with what the Committee had envisaged. A call must be made urgently to the Ministry because the Committee could not afford to be seen making promises that it had no intention to fulfill or even to follow-up.

The Chairperson further stated that the majority of people in this country are African who have been observing a system of indigenous law that has been recognised by the Constituion and it is difficult to explain why for 20 years we are allowing these traditional communities to operate outside the Constition because as Parliament we are unable to pass legislation. The Department promised the Committee that it wanted to develop a concept Paper and even today that document is not before the Committee. Even if it were to come before Members, it would mean that the Committee would start a process that has already lasted 15 years afresh and during this term of Parliament it would not be able to pass that law. This was not acceptable. The Committee should again call on the Ministry to re-introduce the Bill. If there are people that have objections, they should present these to the legislature and it would be dealt with.

Lastly, the Chairperson said that the Constitution is very clear that there is a freedom of religion in this country. No one wants to interfere with religion. In his view, religion, both writtten and unwritten, is clear about what is required. It did not say that when you are sick or have misfortune you can drink petrol. There is no holy scripture that says that if you eat the devil you will be cured or have good fortune. Something is creeping into some of these religions and this is problematic.
Also, a broad meeting of all faith based organisations is needed to tackle this problem.
If religious bodies can not address this, Parliament can not sit back and watch the violation of human dignity and rights of perople, and people being taking advantage of due to illiteracy and their plight in life. What is happening raises a question about relationship between the church and the Constitution and in his view, the former was not superior. The Committee would need to look into this. If the Committee suggested that these religious bodies should be regulated, then it would be accused of interfering with the freedom religion. But what should one do if religion is violating the human dignity of people and their fundamental rights? The Committee can not keep quiet and will have to engage on this matter at some point.

Mr S Swart (ACDP) noted that the Prevention and Combating of Trafficking in Persons Act came into effect over the weekend. He agreed with the Chairperson on the Traditional Courts Bill and that individual heinous crimes by pastors should be prosecuted, though he expressed concern at broad regulation of churches. Mr Swart also did not condone what he saw as vigilantism by the EFF in response to these issues.

Mr W Horn (DA) asserted that the Committee had a duty to ensure that the Traditional Courts Bill is not withdrawn. He noted that the Department is only focusing on the controversial sections of the bill, and suggested that the Committee allow the Department to finish its work.

The Chairperson responded that only the Constitutional Court can decide whether the legislation is constitutional, and added that the Committee could not take another twenty years to address this matter.

Mr Horn believed that the legislature must also guard the constitution, and the Chairperson agreed and called for Parliament to take responsibility.

Mr B Bongo (ANC) noted that other issues must be elevated as well beyond the paralegals. He observed that the Traditional Courts Bill had been debated many times. He noted that millions of South Africans lived in traditional communities and that the constitutionality of these courts must be further discussed so it can be finalised before the end of the year. He also noted that the example of the pastor asking people to drink petrol representing dangerous cults mentioned earlier must be discussed and perhaps regulated to prevent abuses.

The Chairperson spoke about political parties instigating violence against the pastor. He noted that these parties should address these issues with their voices in Parliament, not through unconstitutional violence. He agreed with Mr Bongo that debate on whether such actions by radical pastors warrant government action is necessary. He suggested a conference on Religion and the Constitution. He asserted that inaction would be negligent towards the duties of the committee.

Mr Swart agreed with the Chairperson and Mr Bongo, but hoped that regulation would be a last resort. He worried that regulation could lead to abuse of faith-based organisations.

Filling of vacancy on the SA Human Rights Commission
Mr Swart asked about the gender makeup of the Commission. He noted that duplication occurred in the packet. He enquired about the process moving forward; he noted that normally each party would submit a shortlist of around ten names. Currently about twenty-five members have been nominated for this commissioner position.

Mr Bongo asked for a profile or background on the candidates, not just a list, that would include advice from the Committee on demographics and other issues. He also asked when these positions were advertised for and closed.  Mr Bongo did not feel capable of moving forward with the shortlist without this information.

Ms Breytenbach supported Mr Bongo’s suggestion.

The Chairperson stated that, since this process is rare, perhaps the Committee Secretary made an error in providing the necessary information. The Chairperson agreed with the Committee on the necessity of background information or briefing documents on candidates.

Ms C Majake (ANC) suggested that, since another vacancy is occurring in five months for the Commissioner on Health position, the two selection processes should be combined.

Mr Swart voiced concern that this idea could be illegal, and that this current issue has been delayed since March. He asked the Committee to establish when the next vacancy would be and urged the committee to embark on this issue.

The Chairperson noted that the blockages that have made this process so slow must be found and improved.

Mr Swart pointed to a footnote that specified the gender of candidates and again expressed concern at the amount of time the process has taken.

Mr L Mpumlwana (ANC) said that some members do not have certain documents. He supported the notion of extending the deadline so as to address multiple vacancies at once.

Mr Bongo said that his documents do not have a briefing note.

The Chairperson said that the documents issues would be the fault of his office.

Mr Swart was concerned that the Human Rights Commission has been waiting for a Commissioner since March. He wondered what the consequences of this wait would be. He noted that pages 27-29 were duplicates of earlier documents.

The Chairperson said that his office will sort out the documents, and that the Committee will address the two vacancies together. He asserted that Parliament is accountable to the people and must do things properly.

The Chairperson apologised for his office’s issues with the documentation.

The meeting was adjourned.

 

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