SAHRC appointment process; Courts of Law Amendment Bill: Department responses to submissions

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Justice and Correctional Services

22 September 2016
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

List of 80 SAHRC nominations plus CVs

For the appointment process for commissioners to the South African Human Rights Commission, the Committee resolved to publish the list of 80 candidates until 30 September 2016 in order to ensure public scrutiny and possible objections. It agreed to shortlist 15-21 candidates by 5 October 2016 and publish their names on Parliament’s website. It also agreed to interview candidates over two consecutive days on 13 and 14 October 2016, deliberate on the outcomes of interviews on 19 October 2016, hold further deliberations on 25 October 2016, and, thereafter, make recommendations to Parliament. It agreed that the selection criteria will be special skills, experience, gender, disability, and geographic spread. Members stressed the need for fairness, transparency, and respect for public objections in the selection process. To ensure this, the Committee resolved to disseminate information on the selection process via radio using local languages. The Members were briefed that although legislation does not require candidates to be specialised in specific areas, standard areas of specialisation include human rights, education, law enforcement, migration, equality, access to justice, housing, and children’s rights. Members added water, sanitation, and health to the areas of specialisation and agreed in principle to be guided by these specialisations.

The DoJCD presented its responses to public concerns on the Protected Disclosures Amendment Bill. These concerns include unintended consequences of the Bill, sanctions against employees for violating the provisions of the Bill, insufficient provision of information to employers in the section 10 guide, financial incentives to whistleblowers, expansion of bodies to whom disclosure may be made under section 8, anonymity of whistleblowers, occupational detriment, and criminalisation for false disclosure. After a short deliberation, members agreed to postpone discussion of the DoJCD responses to a future date.

Meeting report

Appointment process for seven Commissioners to the SAHRC
 The Chairperson noted that the Committee received its mandate to discuss the appointments only in August 2016 because of the parliamentary recess caused by the elections. Accordingly, the period allocated for the selection process is very limited. He urged members to make themselves available for the dates of the selections to ensure adequate public participation. He called on members to deliberate on the draft programme for the selection process:

22-30 September 2016 – Public comments on the list of 80 applicants, which will be published.
5 October 2016 – Shortlisting of candidates, which will be published on Parliament’s website.
13 October 2016 – Interviews of candidates
19 October 2016 – Deliberations on the outcomes of interviews
25 October 2016 – Further deliberations and finalisation of recommendations to Parliament.

Discussion
Mr S Swart (ACDP) asked about the outcome of the last selection process earlier in 2016, in which the Committee submitted a list of two names to Parliament. He stated that the Committee has done its part, remarking that there will be further vacancies in the SAHRC from 30 October. He asked if these vacancies are going to be filled now. He also asked if the 80 names on the present list have been investigated.

Mr W Horn (DA) stated that there are seven positions to be filled and one day cannot be enough to interview the candidates for these positions. The Committee needs to discuss the number of candidates it can interview before it adopts a programme of action.

Ms C Pilane-Majake (ANC) requested that the Parliamentary Legal Adviser brief members on the legal process for filling the seven vacancies, given that only one Commissioner will be left at the SAHRC by the end of 2016.

The Chairperson stated that screening of candidates is the responsibility of Parliament, not the Committee. However, time is limited. He therefore asked members’ permission to release the list of nominees for public scrutiny. Members agreed.

Ms Pilane-Majake said that the Committee needs to decide on the number of candidates it can interview and the time period for the interviews. She suggested 21 candidates for interview.

Ms G Breytenbach (DA) suggested 15 candidates for shortlisting.

Mr Horn suggested that the Committee shortlist candidates according to their areas of specialisation. This is not to say that an applicant with potential cannot be appointed in order to develop skills in a particular area later.

The Chairperson stated that the law is the guide for the selection process. However, experience, special skills, integrity, and eligibility are the criteria for the selection process.

Mr Swart noted that continuity is important in the SAHRC. Thus, a current Commissioner eligible for appointment may be reappointed in order to ensure continuity.

The Chairperson said that any reduction in the number of shortlisted candidates should be guided by the criteria he had outlined.

Ms Pilane-Majake suggested that gender balance and disability be added to the criteria for the selection process.

Mr L Mpumlwana (ANC) said that 21 is a sufficient number for shortlisting.

Ms M Mothapo (ANC) suggested geographical spread to be added to the criteria.

The Chairperson and members agreed.

Ms Mothapo said that fairness and convenience should be considered in deciding the number of days for interviews. It might be unfair that the latter candidates know the type of questions that the Committee asked their predecessors.

Ms Breytenbach disagreed with Ms Mothapo. She said that the candidates are all adults and presumably mature. Everyone’s CV is different and candidates will be interviewed on their own merits. It is absurd to keep candidates locked up for a full day in this age of smart phones.

The Chairperson noted that the Ad Hoc Committee on the Appointment of the Public Protector, which Ms Breytenbach took part  in, has been hailed as successful. The Ad Hoc Committee did its job in one day.

Ms Pilane-Majake suggested that candidates may arrive for interviews at different times. They need not arrive at the same time and need not be sequestered in one room.

The Chairperson agreed that fairness is important in the selection process.

Mr Swart explained that the selection process for the Public Prosecutor was a learning curve. It taught members that it is impracticable to hold interviews for many candidates in one day. He said that interviewing 15 candidates must take place over at least two days because interviewing is a lengthy process. The selection process of the Magistrates Commission shows that later candidates learn of the questions asked of their predecessors. Also, the selection committee members get tired eventually. It is disrespectful to lock up future leaders in one place in order to ensure they do not discuss questions.

The Chairperson noted that parliamentary precedent exist for selection interviews. The experiences from those processes should be taken into account.

Mr M Maila (ANC) raised the time allocation for interviewing each candidate and time allocation for their presentations.

Ms Pilane-Majake replied that Mr Maila’s question is dependent on the number of candidates to be interviewed. The Committee would have to decide first.

Mr Swart suggested an allocation of one hour for each candidate. Each candidate can be given five minutes to introduce themselves. He noted that this selection committee is smaller than regular parliamentary selection committees. Also, interested parliamentarians are free to take part in the interviews.

The Chairperson stated that orderliness is needed for parliamentary members’ participation, given that too many MPs can turn up.

Mr Horn reminded the Committee that the April interviews took place in less than an hour for each candidate. He suggested that the Committee may end up with 15 minutes of inactivity if it decides to allocate one hour for each candidate.

Mr Mpumlwana suggested 45 minutes for each candidate.

Ms Mothapo cautioned members to refrain from un-parliamentary language. She complained that Ms Breytenbach’s use of words such as ‘absolute nonsense’ are un-parliamentary.

Ms Breytenbach asked Ms Mothapo to ‘grow a thicker skin.

The Chairperson advised members to conduct themselves in a respectful manner that promotes the image of Parliament.

Ms Mothapo agreed with Mr Mpumlwana’s suggestion of 45 minutes for each candidate.

Members agreed on 45 minutes for each candidate – five minutes for introductions, and 40 for questions.

Mr Swart suggested 15 to 21 candidates for shortlisting.

Mr Horn advised that Parliament and the Committee can save time by the way they conduct the shortlisting process. He advised that politics must be avoided. If the Committee limits itself to 20 candidates, it may end up with fewer than this figure. In any case, two days are needed for interviews.

The Chairperson called on members to agree on the number of days for interviews. He suggested two days for reasons of fairness and concentration on the part of the selection committee.

Ms Pilane-Majake agreed with Mr Swart’s suggestion for two days.

Mr Swart suggested a maximum of 15 candidates. The Committee can choose a higher number if need be. He asked the Committee to ask each candidate to fill in a questionnaire.

Members agreed on 15-21 candidates to be shortlisted and interviewed over two consecutive days.

The Chairperson summarised members’ agreement as:
22-30 September 2016 – Public comments on 80 candidates, which will be published.
5 October 2016 – Shortlisting of 15-21 candidates, which will be published on Parliament’s website.
13-14 October 2016 – Interviews of shortlisted candidates to take place over two consecutive days.
19 October 2016 – Deliberations on the outcomes of interviews
25 October 2016 – Further deliberations and finalisation of recommendations to Parliament.

The criteria for the selection will be: special skills, experience (for continuity), gender, disability, and geographic spread. A questionnaire will be given to candidates to complete. Paramount in this process is fairness to all candidates, transparency, and respect for public objections.

Mr Mpumlwana suggested the inclusion of radio in indigenous languages for eliciting public opinion.

Members agreed that information will be disseminated in local languages.

The Chairperson urged members to be available to disseminate information on local radio stations.

Mr Horn noted that the draft programme states 6 October for shortlisting. The Chairperson corrected it as 5 October.

Ms Pilane-Majake asked members to decide on how many positions are full time or part time.

Ms Christine Silkstone, Parliamentary Content Adviser, noted that the one Commissioner who will remain at the end of the year is full time. Five full time and two part-time positions need to be filled. She affirmed that commissioners are eligible for re-appointment if they apply. She suggested that candidates can be asked to make a short presentation before they are interviewed.

Ms Silkstone further stated that there’s nothing in legislation that requires that candidates must be specialised in specific areas. However, the following are standard areas of specialisation:
Human rights
Education
Law enforcement
Migration
Equality
Access to justice
Housing
Children’s rights.  

Mr Horn suggested that candidates could be asked whether they want to serve part time or full time.

Mr Mpumlwana requested time frames for disseminating information via radio stations.

The Chairperson responded that time slots are yet to be allocated. He put members on alert for 22 September to 25 October 2016.

Ms Pilane-Majake suggested that health, water and sanitation should be added to the areas of specialisation.

Ms Silkstone agreed that socio-economic rights should be an area of specialisation.

The Chairperson supported this.

The Chairperson called on civil society and the public to feel free to participate in the selection process.

DoJCD Response to submissions on Protected Disclosures Amendment Bill
Mr Lawrence Basset, DoJCD Chief Director: Legislation Development, and Mr Henk Du Preez, State Law Adviser, presented the DoJCD responses to respond to public submissions on the Bill.

Mr Du Preez first presented organisations that fully or partially support the Bill as follows:
Cape Bar Parliamentary Committee
Banking Association of South Africa
Congress of South African Trade Unions
Corruption Watch
Open Democracy Advice Centre (ODAC)
Commission on Gender Equality.

He then presented aspects of the Bill which drew comments, criticisms, and recommendations from these bodies. Some of these are the unintended consequences of the Bill, sanctions against the employee for violating the provisions of the Bill, insufficient provision of information to employers in the section 10 guide, financial incentives to whistleblowers either as a percentage of the recovered sum or a reasonable sum.

The DoJCD stated its objection to incentivising whistleblowers on the ground that it will place undue strain on organisations and cause a shift to pecuniary motives for disclosure of information. It predicated its argument on the need to create a balance between bona fide and non-bona fide disclosures. Mr Basset added that civil servants are prohibited by legislation such as the National Environmental Act from acting with a view to obtain reward.

The DoJCD also identified expansion of bodies to which disclosure may be made under section 8 as a concern raised during the public hearings. It responded that the type of proposed expansion may make disclosure bodies unwieldy. It promised to consult and recommend to the Minister additional bodies that may need to be added to section 8. It suggested three chapter 9 institutions: Commission on Gender Equality, the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. It requested the Committee to authorise it to seek the permission of these bodies.

The DoJCD responded to concerns raised about the need for anonymity of whistleblowers. It agreed that the identity of whistleblowers need to be protected. However, exceptions may be made for investigation purposes. It stated that this issue may be more appropriately dealt with in the guidelines for disclosure.

The DoJCD responded to the concern about occupational detriment, stating that existing mechanisms for protected disclosures are sufficient for dealing with occupational detriment. It explained that occupational detriment is linked to criminalisation. It also responded to the proposed amendments to the definition section of the Act. It argued that the definitions proposed by COSATU are technical.

Discussion
The Chairperson asked Mr Basset whether the DoJCD has sufficiently responded to the concerns raised by the Open Democracy Advice Centre.

Mr Basset replied that the DoJCD is still studying the proposals, having received them late.

The Chairperson noted that the State Law Adviser is a friend of Parliament and acts like an institution supporting democracy.

Mr Swart said that it might be wise to postpone discussion on the DoJCD responses to a later date, given that some members are not around and the DoJCD might need to consult further.

Mr Basset agreed with Mr Swart’s suggestion.

Also agreeing with Mr Swart, Ms Pilane-Majake sought clarification on the DoJCD response to ODAC’s concerns about criminalisation for false disclosure.

Mr Horn noted that members need more explanation on the link between reputational damage and criminalisation.

Members agreed to postpone discussions on the DoJCD responses.

The Chairperson thanked everyone and closed the meeting.

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