Legal Aid South Africa & South African Human Rights Commission on their 2016 Annual Performance Plans

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Justice and Correctional Services

07 April 2016
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

Legal Aid South Africa Chairperson said that despite the budget cuts, service delivery was not compromised. He did however note that in the last financial year to this financial year Legal Aid were decreasing recruitment levels. The Chief Executive Officer of Legal Aid SA said that they would continue with skills development programmes which spoke specifically to the improved strengthening of organizational competences and expertise. The Chief Financial Officer noted that Legal Aid’s budget baseline was at R1.6 billion which would ensure the continuity of service delivery and the allocation would increase to about R1,7 billion in 2017/18 and to about R1.8 billion in the 2018/19. Legal Aid had to reduce their recruitment level from 97% to 96% to be able to be within budget and Legal Aid had to reduce the Judicare budget by about 7%.

In discussion, the Committee asked about land matters and representation of poor people, the impact of the e-Legal Aid Administrative System (eLAA) service provider fallout – had there been any losses to Legal Aid, issues related to industrial ombuds and lessons learnt from Marikana. Legal Aid replied that they had not experienced any losses as a result of the fallout with the service provider. In terms of lessons learnt in Marikana, the Constitution had clarified Legal Aid’s role pertaining to service delivery in that commission and that the executive was responsible for resourcing Legal Aid when that commission was established.

The South African Human Rights Commission (SAHRC) said it would focus on five key pointers in 2016/17:
- promotion of compliance with international and regional obligations,
- advancing the realisation of human rights,
- deepening the understanding of human rights to entrench a human rights culture,
- ensuring the fulfilment of constitutional and legislative mandates and
- improve the effectiveness and efficiency of the Commission to support delivery on the mandate.
The Chief Executive Officer said that in the realization of these key strategic objectives the SAHRC would strengthen engagements with human rights structures at international and regional levels and the Commission recognized the high office of the Commissioners and that SAHRC’s legal services, advocacy and research units would be central in the delivery of strategic objectives. The Chief Financial Officer indicated that 63% of budget allocation went to personnel costs of the Commission with only 2% for advocacy and 1% for research. The Commission wanted review its budget allocations.

In discussion, the Committee raised the late submission of country reports by South Africa to international institutions such as the UN, the protection of the rights of old and disabled people particularly in the rural areas, land distribution and human rights issues and the use of African languages. The SAHRC noted that South Africa was on track with a number of international report submissions but outstanding ones included the Convention against Torture which was several years late. It noted that various government departments were not complying with the Employment Equity Act in terms of the recruitment of disabled people and that the SAHRC needed help to ensure government comply.

Meeting report

Legal Aid South Africa on its Annual Performance Plan and Budget 2016/2017
Judge President Dunstan Mlambo, Board Chairperson of Legal Aid South Africa, said that Legal Aid continued to do what the Constitution says they should do for the vulnerable people of South Africa. Legal Aid had challenges especially with the budget cuts. He assured the Committee that service delivery was not compromised but that expansion was the problem due to the budget cuts.

Legal Aid continue to work in an environment where they think more can be done and cited the fast tracking of cases which have taken long to resolve as an example. He admitted that it was slow progress because the bulk of the cases were from the Regional Courts and the Regional Court worked in a system where judicial officers controlled their own roles. The High Court backlog level was minimal because they prioritise and finalise those cases.

Ms Vidhu Vedalankar, Chief Executive Officer of Legal Aid South Africa, reported to the Committee on the Annual Performance Plan and the budget under the constraints posed by the budget cuts. She noted that last year they had a cut of R63 million and this year a cut of R93 million. The budget cuts however did not affect service delivery but rather cash flow management. The wage settlement for staff and the higher contractual obligations were one of the main issues which meant that they had a shortfall. The shortfall meant that when they had reached their recruitment target, they would not be able to fill more posts. In terms of the Judicare budget, they had reduced that by about 7%. Despite the changes, Legal Aid would try to maintain the service delivery and recruitment levels but they were not sure they would be able to do so.

In terms of the performance summary at end of third quarter 2015/16, Legal Aid was reasonably satisfied and they were on track. The number of matters coming to courts and civil legal aid matters had stabilised and they did not see the numbers increasing. They were still present at all the courts that they had to give legal aid at.

In terms of the strategic plan 2015-2020, they had completed the first year at the end of March 2016 and would report to the Committee on that later in the year.

She outlined the strategic objectives and targets for each programme. Programme 1 deals with the delivery of civil and criminal legal aid. The target for petitioner per court ratio in criminal matters in District Courts is 83% coverage and in Regional Courts 93% coverage. In civil legal matters, based on the number of available practitioners, they would take in court matters to a fixed extent. In the event that they were incapacitated they would give priority to the rights in Constitutional Court matters. At the High Court level all legal aid matters were covered.

In Programmes 3 and 4, their focus was to deliver quality legal services that were client focused. Clients are provided with first level advice at128 offices and the national toll free advice line assists them to address legal problems that do not require litigation. Legal Aid had a project where paralegals provided advice at prisons which had a large number of awaiting trial prisoners. The impact litigation programme which gave attention to the rights contained in the Constitution by means of class action and precedent setting litigation, would be continued in 2016/17 and was budgeted for at R10 million.

Programme 5 was designed for Legal Aid to participate in, contribute to and influence structures aiming at improving the functioning of courts and justice system and Programme 6 was linked to accountability of Legal Aid to the executive and Parliament.

Programmes 7 and 8 dealt with finances and financial sustainability. They would ensure that the budget and plans were approved timeously. She noted that they had submitted the MTEF and budget plans to National Treasury and Department of Justice and would be providing a report in the next financial year.

Programmes 9, 10 and 11 spoke to maintaining and enhancing good governance. The programmes were designed to ensure best governance practices, compliance with all statutory requirements, establishment of an independent monitoring and oversight unit and an effective board providing leadership and oversight on performance. Legal Aid had targeted 100% compliance with statutory requirements including the Legal Aid Act and PFMA. It would ensure more than 95% of the audit coverage plan would be delivered and that the board is functioning effectively. On the 1 March Legal Aid had a new board which was appointed by the Minister and ratified by Cabinet. It was a smaller board with 10 board members and 4 executive members. Legal Aid would focus on stabilising the new board and ensuring that the board remained effective.

Programme 12 spoke to the rest of the requirements of the Legal Aid Act. The new board would have to look at the Legal Aid regulations and the new Legal Aid Manual which would be finalised by 28 February 2017. 

Programmes 13 spoke to the financial management supply chain and asset management practices. They were implementing measures provided by National Treasury, speaking specifically to cost cutting measures, the establishment of the Office of the Chief Procurement Officer and having a single national database for all suppliers to government entities. In this year the focus was to ensure that all these processes worked and that Legal Aid had ensured that many of their suppliers had registered on the new database. from a financial management front they would not let these processes distract them from their core of delivering legal aid services.

Programme 14 and 15 dealt with human resources. These programmes were designed to ensure the maintenance of recruitment levels so that budget allocations were fully spent but also to ensure that Legal Aid had the capacity through their staff to deliver services. The main point here was that in the last financial year to this financial year they were decreasing recruitment levels. They would continue with skills development programmes which spoke specifically to the improved strengthening of organizational competences and expertise required for delivery of quality outcomes.

Programme 16 spoke to the IT section of Legal Aid. Legal Aid was very IT dependent and they were in the process of establishing a new Legal Aid IT administration system but had a problem with the service provider resulting in the termination of the contract. Luckily Legal Aid had ensured that they did not waste any money and the board had approved a new service provider to continue the process of creating a new IT administration system from 1 May.

Budget 2016/2017
Ms Rebecca Hlabatau, Chief Financial Officer: Legal Aid South Africa, said that in preparing the budget they took into account the budget cuts. They also had reprioritized the budget taking into account the spending pressures within the budget allocations. The cash flows would be managed effectively ensuring that budget reduction cuts are funded from cash reserves and that service delivery would not be negatively impacted by budget reductions.

In terms of the Legal Aid revised baseline, before the funding from cash flow reserves of Legal Aid, the baseline was R1.5 billion for 2015/16 and after taking into account the R92 million, it would take Legal Aid to R1.6 billion which would ensure the continuity of service delivery. The allocation will increase to about R1.7 billion in 2017/18 and to about R1.8 billion in 2018/19 as the current budget cuts were once off. With regards to the summarised MTF for 2016 to 2019, she noted that in the 2015/16 budget they had R1.733 billion and in the 2016/17 they had R1.722 billion. The 2015/16 included the role of a funding of about R92 million.

Salaries and related costs took about 70% of their budget, being a high intensive human-capital organization. There was an increase of about 6.6% between 2015/16 and 2016/17 due to the cost of living increase (COLI) and the performance progression increase (PPI) and that Legal Aid had to reduce their recruitment level from 97 to 96% to be able to be within budget, noting Treasury’s regulation that whatever additional costs above COLI, must be funded from the existing baseline allocation.

Other direct expenditure decreased by 28% as a result of the impact litigation roll over funding included in the 2015/16 budget but not included in 2016/17. Legal Aid had to reduce the Judicare budget by about 7% to be able to be within the budget at the same time as freezing non-critical positions.

Overall operating expenditure had increased by 2.2%. Due to budget constraints they had only increased the budgets relating to contractual obligations. The capital expenditure decreased by 381% due to the once off roll-over funding which include e-Legal Aid Administrative (eLAA) system funding project which was included in the 2015/16 budget but had to be put on hold due to non-performance by the supplier and once off funding for the acquisition of land and buildings that was approved by National Treasury.

Legal Aid had prepared the budget with the following considerations: Legal Aid South Africa's 5 year strategic plan 2015 to 2020, the year on year increase of National Treasury allocations including additional funding over the Medium Term Expenditure Framework (MTEF), the future financial sustainability of the organisation, the proportion of direct service delivery costs to administration support costs, the Capital Asset Replacement Programme, the National Treasury Instructions 1 and 3 of 2013/14, the budget cut letter of 27 November 2014 and the National Treasury allocation letter of 20 January 2016.

In terms of the key budget challenges, although there are no additional budget cuts in 2016/17 the COLI that was higher than micro increases impacted the budget adversely, resulting in a negative growth budget. Legal Aid had a shortfall of 3.4% which was made up of 1.5% for PPI and 1.9% for COLI. This shortfall was funded by the decrease in recruitment levels, freezing of positions where possible, the reduced Judicare and impact litigation budget and by extending the usefulness of motor vehicles and computer hardware.

With regards to expenditure trends over the MTEF period, more than 70% of Legal Aid South Africa's budget was allocated to the client and community component of the balance score card which was directly linked to the delivery of services. She noted that budget constraints continue to affect the operation of Legal Aid SA. Areas of funding pressures linked to contractual obligations were as follows: Office accommodation, escalations linked to security contracts and cleaning services and substantial increase in municipal service rates and vehicle fuel. Legal Aid has been consistently allocating about 2% of the budget for capital expenditure. Legal Aid SA has implemented measures to extend the lifespan of the assets taking into account the current budget constraints.

In terms of staff trends, Legal Aid SA had an approved staff establishment of 2 854 and that the total positions filled and funded for in 2015/16 were 2 717 posts. She noted that as at 31 March 2016, 2 156 (79%) were legal practitioners, including paralegals, and 561 non-legal staff making it a total of 2 717 (95%) staff. The staff establishment is expected to increase from 2 797 to 2 888 posts with the funds from the court expansion and thereafter remain the same throughout the MTEF period.

Judge President Mlambo said that Legal Aid SA was supporting the Limpopo division by making sure that it did not fail in processing cases and covering its operations and that the constraints would impact Legal Aid. They had already started identifying the needs from a legal representative view and assured the Committee that Legal Aid would be trying its best, despite the financial constraints, to cover the operations of that division.

Mr W Horn (DA) asked if the usage of cash reserves to maintain a positive cash flow, would impact on Legal Aids' good audit status. With the non-performance of the electronic system service provider, how much had been paid, were there any losses or damages to Legal Aid, what was the status of that contract and what was to happen going forward? He asked for comments on Legal Aid’s finalization of the integrated system. In terms of the landless groups, was Legal Aid in any way involved in the discussion to set up a landless groups fund in the Department of Land Affairs?

Mr B Bongo (ANC) asked the extent to which the section within Legal Aid that assists land claimants was continuing. In terms of language whether this would be multilingual and an integrated justice system developed. In terms of the case flow management issue, what would the plan be to deal with this matter?

Mr M Maila (ANC) asked with regards to the integrated justice system whether the fact that Legal Aid was operational in 800 police stations around the country did not constrain available resources and add to the workload of the institution. He asked if Legal Aid SA had learnt any lessons from Marikina and whether, when budgeting, they were anticipating a similar situation.

Ms M Mathapo (ANC) confirmed that Legal Aid was visible in the Limpopo division as on 22 March she had witnessed it firsthand. In terms of marketing and visibility, Legal Aid had implemented measures previously suggested in committee meetings which proved their responsiveness. In terms of the Judicare reduction by 7%, she asked for the number of woman legal practitioners who are being empowered through the Judicare system and Legal Aid’s role in the National and Provincial Efficiency Enhancement Committee.

Ms M Pilane-Majake (ANC) appreciated the measures, which did not include requesting more money, that Legal Aid had developed to handle the budget cuts. She asked if anything was being looked at concerning the protection of the rights of woman in litigation and pertaining to Marikana. On the industrial ombuds, she commented that Legal Aid SA should develop interest in this area and with regards to the Marikana issue she suggested that Legal Aid SA Legislation be reviewed to ensure prevention measures are developed.

The Chairperson said that the Committee had not raised land issues for the first time. He asserted that land dispossession was the root of unemployment, poverty and inequality and that this triple challenge led to other problems such as racism and crime. Their failure, as government, to address land dispossession and transfer the land to the people was going to create problems, even for Legal Aid. He cited challenges with the legal regime and problems of the Lands Claims Court and said that there was nothing that could destroy South Africa’s democracy faster than the land question.

He agreed with Mr Horn and suggested that the fund to help land claimants be transferred to Legal Aid which would cut the red-tape entrenched in the lands claim process. He stated that the President in different platforms has asserted that the Land Restitution Act is loaded in favour of land owners, which nowadays were not only white people but black owners who were not transferring the land to the people. He suggested that the Committee follow up on the workshop and ask Judge President Mlambo to prepare an input to guide that discussion and approach the Department of Land Affairs about the relocation of funds.

Mr L Mpumlwana (ANC) asked if Legal Aid could go at least once a month go to radio stations at the local level to explain the services which Legal Aid provide.

Judge President Mlambo replied that the land issue was a vexed one and that the last time they had spoken about it, they agreed that they could contribute towards solutions. One side of the land issue was protecting the tenure of people who find themselves on these farms that are owned elsewhere. The other side was the land claims. The evictions was part of the former and Legal Aid did not have a problem in assisting but that it was a matter beyond their control. The biggest problem with Legal Aid getting involved was that they would have to introduce tariffs on legal fees that are charged which people might have a problem with.

He said that Legal Aid had refused to fund Marikana because they held the same view as was expressed in the Committee today that Marikana could eat up funds that could go elsewhere and was unbudgeted for. Legal Aid did not think that their mandate extended to covering people in commissions and for these reasons they had challenged the decisions. Legal Aid wanted the courts to clarify their constitutional obligation as far as covering commissions which the Constitutional Court did do. The lesson learnt was that the executive, under which Legal Aid falls, should look at the budget before setting up commissions to ensure that when the commissions were operational, Legal Aid was fully resourced. It was not Legal Aid’s responsibility to fund people who appear before commissions.

In terms of case flow, Judge President Mlambo replied that Legal Aid was involved in the National Effective Enhancement Committees and Provincial Efficiency Enhancement Committees. The role of Legal Aid as a key stakeholder was valuable and he assured the Committee that they continued to do so. Legal Aid had also prioritized children as a vulnerable group and whenever informed that a child was in custody, they first checked if the child was in a child facility and they fast tracked the child’s representation.

He said Legal Aid did not lose any money on the eLAA programme. They had held back the funds and called the service provider asking for a demonstration on whether the service provider could do the work. When the service provider threatened litigation, Legal Aid said “bring it on”. Subsequently the service provider withdrew. Legal Aid had faced no litigation or loss of money in the matter and he assured the Committee that they operated in a manner to safeguard funds so funds could be used for what they were meant to do.

Mr Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa, said about the integrated criminal justice system, the Committee had to understand that these were all IT systems and the main question was how to share the data each had in those different systems. The desired system should enable data to be shared and utilized by the different systems. A similar path would be taken on how they could share e-dockets. Legal Aid was part of that committee which ensured that whatever each section decided to do, they were able to link.

In terms of languages used in litigation, Legal Aid obviously did not play a lead role in determining the languages used in the courts but that there are certain pilot projects that have taken place where the magistrate, the prosecutor and the defence lawyer can speak one of the eleven official languages and the court proceeds in English and Afrikaans with different translators. He admitted that it was a challenge that needed to be looked at as to how Legal Aid would deal with those languages. Legal Aid recruitment was directed at serving their client base and they ensured that their staff could assist clients in the language of their choice.

On marketing and visibility, he stated that whenever Legal Aid was on television, the numbers of clients increased and they were looking at a more sustainable way of getting the call centre advice line number out. They were finalizing the printing of the call centre number on the back of 70 million Lion matchboxes a month and they would measure the impact of matchboxes as a medium to make the call centre number known.

On children’s rights and maintenance matters, what the Committee had to understand was there were about 200 000 new maintenance matters each year in South Africa but Legal Aid’s current civil capacity was able to handle only 50 000 cases. The current policy stated that where the other party was legally represented, but the custodial parent was unrepresented, Legal Aid would provide representation and advice. Legal Aid had added to the policy by stating that where the custodial parent is unable to a) get a court order or b) they have an order but cannot enforce it, that after an elapsed period of time, they could also qualify for Legal Aid even if the other person is not legally represented. Legal Aid had changed the policy to bring more people in.

The Chairperson said regarding the public interest orientation, that some people just wanted to make money which would in the end threaten the future stability of the country. The Committee was thinking of engaging the relevant departments on the matter.

Mr Jerry Makokoane, Chief Operations Officer: Legal Aid South Africa, referred to the eLAA contract and noted that after the system had been failing frequently, Legal Aid had decided to cancel the contract.

On popularizing Legal Aid, he indicated that Legal Aid had a cycle of advertisements. The new cycle of advertisements on television and radio, especially on the SABC network, had just started at the beginning of this financial year on the first of April. The determinants on the length of advertisements would depend upon the money which Legal Aid had. Legal Aid continued to collaborate with other government institutions especially on important national days when Legal Aid lawyers clarified their role and showcased the work of the institution.

On the empowerment of female professionals, Legal Aid had a cycle of employment equity monitoring which ended in 2014 and it noted that they were lagging behind the set targets. The target for overall woman empowerment was 34% and they had achieved 32%. This was a 2% deferential than the 9% of 2009. At lower level, semi-skilled levels and at professional level, Legal Aid had already exceeded its targets but at top level, they were still lagging behind. Legal Aid needed to work better despite the relatively low differential rate.

Ms Hlabatau replied that the accumulated cash reserves were there to settle liabilities as and when they arose. To reduce the effects of leave pay, they encouraged employees to take leave during the period that there was no work pressures. Legal Aid was managing their liquidity and current ratios ensuring that it was always above the norm or best practice. As a result of these measures, there was not an impact on their audit status.

Judge President Mlambo replied that the linkage with over 800 police station, ensured Legal Aid would never allow a deserving Legal Aid client to go without representation. Wherever they heard someone needed representation, even though they did not have a presence, Legal Aid made sure that they cover that person.

In terms of marketing and visibility, he said he had engaged with tribal structures to see when they could send Legal Aid representatives to go and talk to the tribal leadership because they were aware that when people became retrenched in the urban areas they went back to the rural areas and they were desperate, vulnerable and without money to travel to the urban areas for legal litigation or representation.

In-house he was aware of a number of justice centres which were female- and even black female-led but when it came to Judicare, much of the issues lay with the briefing of woman. A report on this could be developed.

He said Legal Aid continued to play its role internationally and the United Nations Development Goals were important. Legal Aid was integrally involved in the discussion of access to justice as it was they who spearheaded the United Nations resolution on principles and guidelines on access to legal aid in criminal justice systems. They were further involved in the discussion to establish national indicators that tell what the country is doing and what progress is happening in ensuring that meaningful access to justice is created.

The Chairperson thanked Legal Aid South Africa.

South African Human Rights Commission on its Annual Performance Plan and Budget 2016/2017
Ms Lindiwe Khumalo, SAHRC Chief Executive Officer, said the Human Rights Commission Act was central to their work and set out the establishment of the Commission, designated the office of Commissioners as the executive authority and the CEO as the head of the secretariat responsible for administration. The Act states that the SAHRC is independent and reports to Parliament and gives the SAHRC powers to collaborate with other bodies in the work that they do. The Constitution sets out SAHRC’s mandate in very broad terms. It described the Commission as an institution with the aim of creating a culture of respect for human rights by creating awareness in communities, monitoring and reporting on the state of human rights and ensuring that the state progressively realizes social and economic rights. The Promotion of Access to Information Act mandates the Commission to oversee access to information, compliance by the state on requests for access to information, to advice the Minister for recommendations on improvements of policy frameworks and to report to Parliament annually on the extent to which government was complying to access to information.

In terms of the vision, the grand plan for the SAHRC was to transform society to ensure that people secure their rights and to restore the dignity of people, particularly those marginalized. With regards to the organizational structure, the SAHRC was led at the head by the executive authority, the Commissioners, who guided governance policy and the substantive mandate of the Commission. The Commissioners were supported by herself as the CEO and she in turn had a team of executives who supported her.

At a provincial level the SAHRC was headed by a provincial manager who has principally a senior legal officer responsible for investigations, an advocacy and research officer responsible for community outreach, an officer which dealt with intake of complaints and registering complaints, a legal officer and two administrative staff. In bigger provinces, such as Cape Town and Gauteng, the staff complement was slightly larger with a maximum of three senior legal officers dealing with complaints.

In its five-year strategic plan, SAHRC was focusing on the promotion mandate of the Commission. SAHRC wanted to reach marginalized communities and they needed to get the message of human rights out into society because the SAHRC had realized that people were not quite aware of the Constitution in terms of what it means, how it impacts on their lives and why it is relevant to South African society today. The SAHRC focused not only on rural communities but also people with disabilities, women, migrants and refugees.

SAHRC’s plans were conceived in terms of their strategic outcomes, specific objectives that were aligned to their outcomes, and a number of activities. The SAHRC had set out nine specific key strategic outcomes:

1. It sought to use and project a broader constitutional and legislative mandate. In interpreting this outcome they did not want the Commission to take a minimalistic approach and the SAHRC strategy was based on an expansive approach. She appreciated the fact that there were other institutions with a mandate that complemented the Commission and the SAHRC wished to work with them in a collaborative manner.

2. It sought to engage with processes of enacting legislation that promotes constitutional human rights obligations and noted that the SAHRC recognized the role of Parliament in enacting and reforming legislation. The SAHRC was a national human institution that oversees state actions particularly with regard to law reform and the SAHRC would seek to engage with Parliament in creating legislation and the executive at the white paper level to ensure that South Africa’s legislative framework is cogent.

3. It sought to enhance the understanding of international and regional issues through engagement with stakeholders. The Commission had a domestic, regional and international role. The SAHRC had status to engage with the African Union mechanisms as well as the UN mechanisms and in this regard they had to report independently on the status of human rights in South Africa.

4. It sought to use at a first level alternative dispute resolutions for resolving any human rights disputes but that litigation would be used as a tool to also resolve disputes. The Commission recognized that South Africa was emerging out of a period of apartheid and access to justice was still an important issue and whilst they promoted human rights, the protective mandate of the Commission still formed part of their strategy.

5. It sought to intensify advocacy and the Commission needed to improve the level of engagement with communities at the grassroots level. For the far-flung areas of the country that have not received the message of human rights, the Bill of Rights and the work of Chapter Nine institutions, it was the SAHRC’s role to reach these communities.

6. It sought to structure strategic focus areas to enhance effectiveness and recognized that the mandate of the Commission was broad. She noted that the SAHRC would be structuring their work effectively to enable the Commissioners to be able to carry out the broad mandate in terms of Chapter Two of the Constitution.

7. It sought to strengthen key stakeholder relationships to form functional links that will enable the SAHRC and other state entities to work together.

8. It sought to develop the institution as a learning organization and recognized that over a period of 20 years the SAHRC has generated and gathered a tremendous amount of data, learnings and insights. It was an important strategy to harness these learnings and knowledge management was a crucial focus for the SAHRC.

9. It sought to strengthen the capacity that supports delivery on the mandate and recognized that the core strategic objectives of the Commission could only succeed if the support function of the Commission is equally as effective.

The Annual Performance Plan for the next 12 months focused on five strategic objectives:
- promotion of compliance with international and regional obligations,
- advancing the realisation of human rights,
- deepening the understanding of human rights to entrench a human rights culture,
- ensuring the fulfilment of constitutional and legislative mandates and
- improve the effectiveness and efficiency of the Commission to support delivery on the mandate.

With regards to the promotion of compliance with international and regional obligations, the SAHRC would monitor implementation and compliance with international and regional human rights related treaties and they would be considering any treaties that the country has not yet ratified and optional protocols which they would encourage the country to consider.

The SAHRC would strengthen engagements with human rights structures at international and regional levels and the Commission recognized the high offices of commissioners for human rights, the African Court and all other agencies and they sought to have closer engagement with them.

In advancing the realisation of human rights, SAHRC’s legal services, advocacy and research units would be central in the delivery of this strategic objective. The Commission sought to be responsive to human rights concerns this year in a speedy manner and provide thought leadership and resolutions to human rights issues.

On their responsibilities in terms of court orders, she noted that the SAHRC had been asked by the judiciary on two specific instances to carry out responsibilities. These were overseeing the conditions of foreign nationals at the Lindela Repatriation Centre and the delivery of textbooks in the country.

In deepening the understanding of human rights to entrench a human rights culture, she noted that this strategic objective was fundamental to their constitutional mandate and that the SAHRC sought a people-centred approach to advocacy. SAHRC sought to capacitate communities to be able to use human rights mechanisms, institutions and processes themselves and to reduce the reliance on institutions where possible. They wanted to use communications, such as social media, newspapers, radio and the website, as mechanisms to carry out the message.

In ensuring the fulfilment of constitutional and legislative mandates and improve their effectiveness, the SAHRC wanted to engage with bills that may be tabled in the course of the year before Parliament and to proactively ensure that legislation is complied with. The SAHRC had constitutional obligations in terms of the Promotion of Equality Act, to chair the Equality Review Committee and to ensure equality in the country. The Commission was mentioned in the Older Persons Act too.

The SAHRC would carry out the work of access to information for a final year but they anticipated that in 2017/18, it would be handing over this responsibility to the Information Regulator.

On the efficiency of the Commission to support delivery on their mandate, the SAHRC would focus on reviewing and enhancing the effectiveness and efficiency of their governance structures. They would develop their human resource recruitment. In terms of monitoring and evaluation, it was important that the Commission accounts for its work in terms of the qualitative impact and it would seek to strengthen this.

Looking at key performance indicators and targets, the SAHRC has set an 85% target for the finalization of all complaints and inquiries that are directed from provincial offices. Many of the complaints were received in the last quarter and as a result the Commission was not able to set a target of 100%. The Commission would be producing for the second year the trends analysis report which they share with Parliament. The SAHRC would hold investigative hearings where there was an indication in the public domain that there was a systemic human rights issue that needed their attention.

Ms Khumalo said that they hoped to produce a set of policy briefs on thematic areas as the SAHRC felt that in many instances the reports of the Commission are bulky, difficult to digest and that high level policy groups for Parliament might be a useful tool to communicate key recommendations for Parliament to consider. The Annual Advocacy and Communications Report would be produced at the end of this financial year, the completion of a SAHRC Section184 report would be posted on the website and shared with Parliament which related to the data which the Commission received in terms of state compliance with social rights.

Mr Peter Makaneta, SAHRC Chief Financial Officer, said that the total baseline allocation sat at R153 million and that they had received a 6% increment from National Treasury.

In terms of the budget overview, 65% of the budget, which was R99 million, was allocated for personnel costs and R40 million of that budget was being utilized for SAHRC corporate services. The Auditor-General’s fee sat at R2.5 million and of the R40 million, R19 million was allocated for office rentals and municipal charges which was a very big chunk of their budget. The remaining money went to Information Technology and Human Resources related costs. In summary, 91% or R140 million of the budget was allocated to personal and CSD related committed costs and only 9% or R13 million was allocated to core operational units.

With regards to personnel costs, the Commission had adjusted the salary increment to 7.2% as directed by National Treasury. Included in the R99 million budget for personnel costs, the SAHRC had three posts that had not been filled: senior manager and provincial managers in North West, Eastern Cape and Free State as well as two vacant commissioner posts. Total costs for vacancies were about R5.1 million and the posts would be filled during quarter 1 of 2016/17 with exception of the two Commissioner vacancies which are dependent on the parliamentary process.

Programme 1 Administration consumed around 50% of the budget and Programme 2 Promotion and Protection mandate consumed about R70 million (50%) of the budget. Programme 3, their research, monitoring and evaluations mandate, took about R11 million of the budget.

Ms Lindiwe Faith Mokate, Acting SAHRC chairperson, raised several important pointers with the Committee. The SAHRC wanted to have more or a longer meeting with the Committee as in most meetings there was very little time to talk about the work, in terms of the conditions of service for Commissioners as there had never been conditions of service for Commissioners. The SAHRC was appealing to Parliament for funding of treaty obligations. She asked the Committee for clarity on what the SAHRC could expect from the Office of Institutions Supporting Democracy which was located in Parliament. The term of Commissioners was coming to an end and she asked the Committee for a faster process to replace them as lengthy vacancies would have a negative impact on the work the Commission was to do. She raised the Auditor-General fee of R2.4 million as the board felt the SAHRC should not be paying so much money as they had a small budget. This was unfair and some arrangements could be made to reduce this cost.

Dr Danfred James Titus, Commissioner, pointed out that in terms of the optional protocol on the Convention on the Prevention of Torture, there was a mandate that the SAHRC establish National Preventative Mechanisms (NPMs). Through these mechanisms one would get entry to prison cells and places of safety to ensure that the rights of people in prisons cells  are protected. The SAHRC was in communication with the Ministry of Justice and Correctional Services and the SAHRC had prepared a budget for the Department.

The Chairperson said that in terms of Commissioner’s conditions of service, the SAHRC should send a memorandum which stated where they faced challenges and provide recommendations. The Committee would be willing to get those matters addressed.

With regards to the Office on Institutions Supporting Democracy, he did not know the mandate and purpose of this structure and that it was irrelevant to the work of the Committee. He asked if the terms of Commissioners was renewable and also if human rights was working for those without land distribution. He asked the SAHRC to relook at their vision and mission and the land question and suggested that human rights culture would not be credible without resolving the land question.

Mr L Mpumlwana (ANC) said that he wished the SAHRC could expand given more time, and that he found no problems with their work. In terms of African languages, this was a human rights issue and he was concerned that the language of 10 to 20% of the groups governed was still being used as the standard medium language for all. This amounted to no different than the time of colonization. He asked the SAHRC to write and plan something around this.

Ms M Mathapo (ANC) said she was concerned with the high 65% of the budget was allocated to personnel costs and only a small 2% to advocacy and 1% to the research unit. She asked for clarification on the payment of creditors within the stipulated period, if the SAHRC was implementing recommendations of treaties. In terms of the Commissioner Strategic Focus Area on disability, who was responsible for that? The Disabled People of South Africa (DPSA) were very much concerned with certain government departments which were not complying with Employee Equity Act in the recruitment of disabled people. She asked if the SAHRC inquired from departments as to whether they are complying with the Act.

She said that in rural areas older persons were being accused of witchcraft and abused by being deprived of their social age grant by the young. She asked what the Commission was doing about that.

In terms of the environment and mining houses in rural areas, the mining houses were making a lot of profit but that the surrounding areas were very poor. She asked what the Commission which was supposed to assist people with human rights issues, what they were doing about this. She asked if it was not too premature to remove performance indicators in relation to the Promotion of Access to Information Act.

Mr M Maila (ANC) asked if the country reports to the United Nations were being submitted on time as he knew that in the past some were not. On the conditions of service for the Commissioners, he asked if the SAHRC chairperson could create a platform where the Committee could be taken on board.

Mr W Horn (DA) noted that its information and communications technology (ICT) was flagged by the Auditor-General as being a risk area for the SAHRC. In light of the fact that the SAHRC wanted to do an audit of its ICT structure, what was the feedback thus far on this? Pertaining to innovative IT technologies to market the SAHRC, he asked for more information as to what exactly was meant by that.

With regards to obligations for country reports to the United Nations, in the event of late filing of reports, he noticed there was a bit of a blame game between the Department of Justice, the Department of International Relations and the SAHRC. He asked if the SAHRC had developed a way to ensure those reports were filed on time.

In terms of the International Covenant on Civil and Political Rights, he noted some negative remarks by the United Nations on South Africa’s human rights status. He asked how the Commission would react to this, how it would address these human rights violations and how it would get stakeholders on board in the response.

The Chairperson said that when the Committee and SAHRC speak about rights they should also speak about duties and responsibilities. In terms of access to justice, community justice was cheaper than formal justice and those arrangements could facilitate the work of the SAHRC.

On racism, the Committee would take the initiative to criminalize racism and noted that the Department of Justice only wanted to criminalize hate speech. Hate speech was only a symptom of racism and criminalizing hate speech would not root out racism. The Committee also wanted to push the amendment of the Land Restitution Act. In terms of children’s rights, in the 1980s he had established a national children’s rights committee and the Molo Songololo initiative and asked where those or similar kinds of structures were.

On older persons, Adv Bokankatla Joseph Malatji, SAHRC Commissioner, replied that during his time in office he had received and observed a number of abuses of human rights of older persons. The SAHRC made findings against various institutions and departments regarding cases which they treated. Since there was a flood of these cases, the SAHRC decided that they could not deal with these cases on an individual basis and as a result they established a national hearing to determine the core causes of these abuses of older persons. The National Hearings made several findings, the core being that there was a lack of coordination between several departments that dealt with older persons and recommendations were made. He asked the Committee to help the SAHRC in the implementation of these recommendations.

On disabilities, the SAHRC realized that government departments were not complying with the provision of the Employment Equity Act which stated that the intake of employees with disabilities in any department must be at least 2%. The SAHRC had compiled a toolkit specifically designed for the private and public sector, composed of a framework of a list of questions requiring all departments to respond on the employment of people with disabilities. They needed money to implement conventions and protocols and requested that the Committee help the SAHRC to urge government departments to use the toolkit so that the SAHRC could compile a report which would bring recommendations to the Committee.

On mining in rural areas, Ms Mokate replied that the SAHRC had addressed such issues under what they called business and human rights. The SAHRC had prepared a guide on business and human rights which informed people on the do’s and the dont’s of such, how the activities impact on human rights and the legislative framework in South Africa concerning such issues. The SAHRC have had a number of hearings on mining activities and that they operated largely in areas such as Limpopo, the northern parts of the country and the West Rand. The SAHRC had produced publications which were very helpful around mining activities, their dangers and human rights violations. The SAHRC was looking at the impacts of mining on woman and children, the dangers of the Zama-Zama people and children who drown in those mines. There was a lot of work around this area.

Ms Fadlan Adams, SAHRC Senior Researcher, replied about the country reports, saying government had submitted six reports to the United Nations in December 2014, five of which were on review. These were the International Convent on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child and its optional protocol on the sale of children, the Convention on the Elimination of Racial Discrimination and the Convention on the Rights of Persons With Disabilities. The review committee sat and review South Africa’s obligations under the ICCPR and issued concluding observations last month on SA’s ICCPR report.

On the Convention on the Elimination of Racial Discrimination, the South African government would be appearing in July this year before the review committee. On the Convention on the Rights of the Child and its optional protocol on the sale of children, the committee would be reviewing the South African government in September 2016. In February 2016, the South African government had met with the Human Rights Commission and a number of civil society actors to establish a list of issues related to South Africa’s report which was published last month. The government was tasked to respond about the list of issues to the review committee by 3 June 2016 and September was the formal review. On the Conventions on the Rights of Persons With Disabilities, the date of submission had not been set yet and they awaited further information from the United Nations as to when that committee would be sitting. South Africa’s initial report was submitted in December 2014.

With regards to late reporting, the latest one was the Convention against Torture which was seven years overdue. The South African government was due to send through its Periodic Report on the Convention on the Elimination of Discrimination against Woman in February 2015 but it did not do so. The United Nations had sent two formal letters to the South African government asking that the government reply to several questions the United Nations had in relation to the previous report deadlines of February 2013 which the government did not reply to or acknowledge receipt of the letter. It was only in December 2015 when responses to the initial report were sent through to the United Nations. Currently, the state’s country report was overdue.

On the International Covenant on Economic, Cultural and Social Rights, South Africa had only ratified the covenant in January 2015 and they had to submit an initial report by 2017. The SAHRC was pushing for the ratification of the optional protocol to that covenant. On the Convention on Migrant Workers and their Families and the Convention on Enforced Disappearances, currently South Africa had not ratified or even signed those conventions.

At the African level, the government sent through its country report under the African Charter on the Rights and Welfare of the Child and the committee reviewed South Africa in 2015. The committee had released its concluding recommendation which the SAHRC was currently looking at. Under the African Charter on Human and People’s Rights, the government had submitted its report in December 2015 and currently South Africa was to be reviewed by the African Commission.

Adv Titus replied about African languages, saying South Africa had an act called the Use of Official Languages Act of 2012 which requires state departments to at least identify three official languages and to implement that in the department. The irony was that the choice of English by government departments is dominant at the expense of African mother tongues.

On ICCPR, the SAHRC as a national independent institution has responsibilities in terms of the Covenant and he denied that it was a blame-game at all. The Commission had to hold government to account and the SAHRC does not blame, neither did the United Nations. He assured the Committee that they would continue to raise issues concerning covenants.

Adv Titus said that it was not a question of “negative remarks” but that of concluding observations and at the United Nations level the approach was very much interactive in that the UN engaged with the SAHRC, made recommendations and required of the SAHRC to come back and report in terms of obligations which South Africa has signed on. Some of the crucial matters which the UN spoke about was the Al-Bashir, the Truth and Reconciliation and racism matters of the country and it asked the state to redouble their efforts.

On racism, the reality of racism in our country needed to be addressed and the destroying of property was a problem particularly when dealing with the police. He agreed with the Chairperson that there were responsibilities which needed to be looked at.

On the Khoi San, they were conducting hearings as the SAHRC and a report would be produced in that regard. This would apply to the farms as well.

Adv Mohamed Shafie Ammeermia, SAHRC Commissioner, said in relation to violent protests that in as much as the Bill of Rights under the Constitutional made provisions for people to protest, the other side of the Bill of Rights, the rights to life and property was equally safeguarded by the Constitution. His office was engaged in a pilot project with the Office of the Speaker in the Free State which suggested that to prevent violent protests from getting out of hand, one should get all political parties around a table so that they could all state that they subscribe under the Constitution, its values and the Bill of Rights. If they all could distance themselves from violent protests this would allow the criminal justice structure and police to play its role. The SAHRC would forge an alliance with the 25 universities, vice chancellors, the student representative councils and other Higher Education institutions.

On paralegal movements, from the Access to Justice Portfolio, the SAHRC had six Commissioners on board and 180 staff and there was no way they could reach 50 million people and protect, promote and advance the Bill of Rights. They need strategic linkages with the paralegal movement and people who are working within the movement.

Mr Makaneta, SAHRC CFO, said the budget structure was of concern and needed to be reviewed. They put in mechanisms on a weekly basis which made payments on submissions of invoices. On the IT system, ICT has addressed issues through the ICT strategic plan.

The Chairperson said that public participation was important in ensuring human rights are met and agreed with Adv Ameermia's proposal, suggesting that it be written up properly.

The meeting was adjourned.


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