South African Human Rights Commission on its 2017/18 Annual Performance Plan

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Justice and Correctional Services

30 March 2017
Chairperson: Dr M Motshegka (ANC)
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Meeting Summary

The South African Human Rights Commission (SAHRC) presented a report to the Committee on its current work, the budget and the Annual Performance Plan. The new Commission, with seven new commissioners and a new Chairperson, Adv Bongani Majola, started its work on 23 January 2017. The Commission was currently in process of appointing a new CEO.

The SAHRC outlined some of the main issues. Racism was the most common complaint, especially racism via social media. The SAHRC was experiencing problems in ensuring that recommendations contained in SAHRC reports were implemented, and needed some clarity as far as enforcing recommendations. It was unfortunate that in 2008, the recommendations regarding xenophobia were not implemented as this might have prevented the more recent xenophobic attacks. The SAHRC had determined to work with provincial legislatures, especially to improve housing for people with disabilities and to improve the rights of disabled people in the provinces. It was conscious of the need to move ahead quickly. However, without the SAHRC getting sufficient resources, it would be difficult to fulfil the mandate of the SAHRC; he appealed for assistance from the Committee, but later also said that the SAHRC was well aware of the constraints and competing claims on government funding. The SAHRC had already requested the President to review the part-time status of two Commissioners as there was a desperate need for further capacity.  Issues that the new Commission would be addressing were the visibility of the SAHRC, accessibility of SAHRC offices, the level of violence, especially on the Cape Flats, and the rights of foreign nationals. The Court's ruling that it should monitor court orders had also put a strain on the budget, and options were being considered, inclujding the monitoring of Lindela and 400 other designated places of detention for foreign nationals and the mandate to visit, inspect and report on all places of detention, as well as residential facilities holding youth and people with disabilities. The SAHRC simply did not  have the necessary resources to fulfil all the requirements and was in danger of being in contravention of court order but was trying its best. Counsel acted pro bono for the SAHRC and had competing claims from other paying clients. The relationship between the Information Regulator and the SAHRC was being addressed although further meetings were yet to be held.

Members asked about annual reports required by government, and asked whether the SAHRC had received a report about the actions to be taken by Department of Social Development in terms of the APS contract and the progressive realisation of social security, as also a follow up on the recommendations in 2014 about land. They asked to what extent SAHRC had managed to enforce since the court judgment, reminding it of the right to subpoena, and the possibility of amending the legislation to empower it. They suggested the need for more work with the religious communities, and asked if the Office on Institutions Supporting Democracy was actively assisting. One Member suggested that the SAHRC needed to position itself to combat human rights violations, some of which were being made by newly-powerful individuals. They questioned the decision to have commissioners working primarily in certain provinces, and reminded the SAHRC that this Committee had wanted  report on that. They asked if the SAHRC had managed to promote its visibility, but several were concerned that it was still based in towns, and cited the Public Protector's outreach as a good example. They asked about the effectiveness of internal audit, overlaps with other institutions, how far it was on working with farm worker rights, and finally whether it was moving with enough speed and effectiveness. They also asked about staff morale, cautioned it on the need to deal with violent service-delivery protests, and the need to deal with the cause, not only the effect of racism. They commented that reports on the website were not dated, and the  report on safety and security measures in farm areas, dating back to 2014, was only very recently tabled in Parliament. Members asked why no commissioner had been appointed to deal with water, sanitation, the right to land and socio-economic rights, and questioned if there was duplication with gender, child and equality bodies. They made the point that democratic freedom without economic freedom was meaningless and that there was a need to stress both the rights and responsibilities around human rights. Members were concerned about the cost of the leases. They felt more prioritisation was needed, focusing on the most vulnerable, and on farms in particular. The Mining Charter was also problematic, and the land question needed serious attention. Decolonisation and nation building were further, very important issues. The Commission was asked to put its responses in writing

Meeting report

The Committee observed a moment's silence to commemorate the late Mr Ahmed Kathrada.

South African Human Rights Commission (SASAHRC or the Commission): 2017 Budget and Annual Performance Plan
Adv Bongani Majola, Chairperson, South African Human Rights Commission, accompanied by all other Commissioners of the Commission (or SAHRC) noted that the new Commission started its work on 23 January 2017, three months after the previous commissioners had left their office. It had managed to prepare its third quarter report and complete the objectives of the previous commission before the end of the financial year, despite the heavy time pressure.

The Commission was currently in the process of appointing a new Chief Executive Officer, and the appointment would hopefully be finalised within the next two weeks.

The Commission developed the deliverables for 2017/18 and arranged for the Commissioners to be allocated focus areas. The Commission had been doing substantive work. That morning the SAHRC had attended a press conference with the Ministers of Human Settlements and Social Development in the Western Cape and had agreed to develop a memorandum of understanding to work closely with both ministers to improve housing for people with disabilities and to improve the rights of disabled people in the province. This process would be followed in other provinces.

The Commission had a racism hearing in February since racism was the most common complaint, especially racism via social media, which presented particular challenge. Racism was a huge problem and the Commission was supporting people had become the victims of racist attacks. The SAHRC responded to many complaints but they had also decided to use legislation to undertake its own initiatives. A mediation on the Cape Flats was initiated because of the level of violence, where up to eight people were killed on a day and people were thus denied the right to life. SAHRC was hoping that the human rights discourse might mediate the violence and improve respect for the right to life.

The SABC was to give greater emphasis to the language of the Northern Cape, Khoisan. In the Eastern Cape, SAHRC had dealt with schools that denied the right of access to education, especially because of very dilapidated facilities and lack of water. The new SAHRC had followed up on the previous Commission’s work on emergency health care in the Free State. Limpopo communities were being assisted, by mediation between the Molepo people and the mining industry. Immediately on appointment, the current Commissioners became involved in the issue of learners who did not have access to schools, plus the challenges relating to the delivery of learning materials. The Commission had engaged with the Minister and MECs of Education to ensure that learners obtain access to schools and learning materials, but also to ensure that the learners received support.  SAHRC would be having a meeting with the Minister to see if the problems of January/February 2017 could be reduced or alleviated in 2018. SAHRC was involved in the Mpumalanga coffin case, and had helped the two young men who had been attacked to gain access to the Equality Court. The Commission had also intervened in a court judgement for a trans-gender person in Limpopo. There are many parts of the country where the Commission needs to work. It was looking at mobile clinics, partnering with civil society and would like to use the media to spread “the gospel of human rights”. 

The Commission was working on the recommendations of previous Commissions and trying to develop a strategy to deal with them. Often, when working or engaging with stakeholders, especially government departments, the Commission did not get cooperation in the implementation of the recommendations. In 2008, if the recommendations regarding xenophobia had been implemented, they could have prevented the more recent xenophobic attacks. The police had been engaged in an attempt to find solutions and to prevent the attacks. The SAHRC Chairperson had participated in a workshop with the Minister of Home Affairs on the new immigration policy, and had stressed that the lessons of the past should be incorporated in the new policy, so that people's rights are not denied. The advocacy unit was working hard, and the Commission was looking at ways of identifying hotspots, looking also for ways to protect the rights of foreign nationals, even within Lindela. Other areas of concern included that farm workers were driven off farms and then they went to towns where facilities, housing and schooling were not available.

The new Commission was restricted to working within the strategy for 2015- 2020 as defined by the previous Commission but they would work on new strategy for 2021- 2025. However, without adequate resources, it would be difficult to fulfil the mandate. For this reason the SAHRC appealed to the Committee to help them secure more money. SAHRC was looking into cost-saving strategies. Working with two part-time commissioners was very difficult, and they needed to be made full-time commissioners as there was a desperate need for further capacity; this point had been made to the President.

Mr Peter Makaneta, Acting Chief Executive Officer, presented the strategic objectives, repeating that these had not changed in this year. Rentals were high, at around R19 million, but work was continuing on Kader Asmal’s vision of a central place where all Chapter 9 institutions could be located. It was also hoped that there was a way of lessening the R2.9 million that had to be paid to the Auditor General.

Ms Chantal Kisoon, Chief Operating Officer, SAHRC, spoke to the funding constraints and areas that could not be addressed without funding. Three critical areas were identified by the Board; namely, increasing visibility and access to justice; monitoring and measuring the impact of reports and recommendations; compliance issues emanating from the courts and as a result of the status and obligations that SAHRC has both nationally and internationally as a human rights organisation.

Desirable but unfunded projects included:
- impact monitoring and evaluation studies and surveys
- monitoring of court orders
- setting up mobile clinics and satellite offices to enhance outreach and visibility especially in marginalised areas,
- implementation of advocacy and outreach programme for schools. With just one staff member on the ground in each province, it became impossible to reach the people. SAHRC wanted to have satellite offices in large rural and populous provinces.

 

The court order requirements to monitor had also put a strain on the budget. Options were being considered around that mandate, such as the monitoring of Lindela and 400 other designated places of detention for foreign nationals.  The Commission had a mandate to visit, inspect and report on all places of detention as well as residential facilities holding youth and people with disabilities. There were additional mandates but the Commission simply did not have the resources to fulfil these mandates and risked being in contravention of court orders simply because it did not have the necessary resources. The Commission relied on a single legal person to appear in court for the SAHRC but he or she was often up against a panel of top rate lawyers. The SASSA case was one where the Commission simply did not have the funds to do more, but had been involved in the case regarding the calling-in of loans to beneficiaries.

 

By the end of the third quarter, 31 December 2016, the Commission had received a total of 8166 complaints, of which 75% had been finalised. Four national hearings had been held and the SAHRC had released investigative reports and reports based on previous hearings. 35 complaints were addressed through alternative dispute processes, primarily relating to violation of the right to equality.  A consultation and conceptual framework was under way for planned hearings on the rights of mental health care users.

 

Mr Majola noted that it was sometimes important to resort to litigation, as one court judgement frequently assisted many communities that had similar problems. He added that Counsel was, in fact, acting pro bono, which resulted in delays as counsel had obligations also to paying clients.

 

Discussion

Mr S Swart (ACDP) recognised the challenge of the SAHRC working under such difficult financial constraints. He asked about the court orders requiring oversight functions, which suggested that the courts did not understand the consequences on the financial standing of the SAHRC. He referred to the annual reports required by government, and asked whether the SAHRC had received a report about the actions to be taken by Department of Social Development in terms of the APS contract and the progressive realisation of social security. He asked if the SAHRC had a meeting with the Information Regulator? He noted that on 30 July 2014, there was a report on monitoring the systemic challenge about land, and he then asked to what degree those recommendations had been implemented?

Mr Swart commented that a major challenge was the advisory, but not binding, nature of SAHRC reports, and he asked to what extent the SAHRC had actually been able to enforce any recommendations, and what happened to the reports that it filed? He noted the comment that had some of the proposals regarding xenophobia been implemented, the latest round of xenophobic attacks would have been avoided.  Could the religious community not work with SAHRC to advocate for racism?  Was the Office in Parliament that supported Chapter Nine institutions assisting? SAHRC had a statutory right to subpoena people from government departments and these powers could be considered where there were far-reaching consequences. He felt that Parliament should assist far more.

 

Mr N Matiase (EFF) welcomed the new Commissioners who were still familiarising themselves with their functions.  One area of concern was the effectiveness of SAHRC, especially in relation to section 184 of the Constitution that empowered it to promote human rights.  The SAHRC needed some clarity as far as enforcing recommendations that followed the monitoring; it could not just be a monitoring organisation but have no enforcement status. Perhaps the governing legislation needed to be reviewed in order to empower it to enforce its recommendations. The Auditor General’s Office also made findings and recommendations but lacked the authority to enforce them. Another problem was, as shown by history, that when the elite in different forms and different locations realised that their power was under threat, they tended to engage in unsavoury actions and human rights violations. A new set of challenges was emerging as the elite realised that their hold on power was being lost. The conduct of persons under such conditions could result in human rights violations.  The SAHRC needed to position itself to combat such human rights violations. Responding to an interjection that this might suggest that the SAHRC act on mere speculation, he repeated that history had taught valuable lessons and this was not speculation.

Mr B Bongo (ANC) understood the problems with the fiscus; every Chapter 9 institution had spoken about the need for more funding.  All Commissioners had a track record of activism in human rights. The request for part-time Commissioners to become full-time might be problematic if the full-time Commissioners stayed only in a particular province, as some preferred to work part-time in their own province. The Committee had suggested previously that the SAHRC should present a model, drawing on the King Report on good governance, as to how Commissioners could work full-time. He noted that the last Budget Review and Recommendation Report raised the issue of prioritising visibility, and he asked if there had been movement on this. He asked what was the situation with the internal auditors, who were key to a clean audit? The recent court judgement about the binding nature of SAHRC recommendations also gave it more leeway in terms of enforcement. There were overlaps between Chapter 9 institutions, so he asked about cooperation, and how, for instance, the Information Regulator's work might overlap with SAHRC. He asked if recommendations regarding the Life Esidimeni project had been implemented, if the issues had been rectified. He asked how far SAHRC had gone with rights of farm workers, not only in Ermelo, but also in the Western Cape and other provinces.  What was the immediate reaction of the SAHRC when a senior person in government supported colonialism when the majority of people were still suffering from colonialism. Commenting that there is a need to take stock, he posed the question whether the SAHRC was moving with the requisite speed, and how far the country had moved on human rights since 1994? That would determine the pace at which SAHRC needed to move.

Mr M Maila (ANC) asked what kind of audit was the Commission expecting and how was this being dealt with. He commended the approach that every Commissioner would work country-wide.  If low staff morale still persisted, then he asked what strategies were being put in place to deal with that situation. SAHRC needed to work with communities on the ground to deal with situations around violent service delivery protests. There needed to be an early warning to deal with this. He had made a recommendation to the Public Protector as he realised that there are government officials who were based in communities, but reports to their departments, although perhaps touching on human rights issues, may not be something that could be dealt with by that government department, but perhaps it could be addressed by the SAHRC.  On the issue of racism, he felt that there were attempts to cure the symptoms without addressing the causes.  The racists themselves are also victims because they come from a past that did not allow them to understand their racism and prepare for their life in this country. They had been made to believe that they had a superiority complex. He pointed out that racism was happening every day and SAHRC should be in a position to heal even the causes of racism.

Mr W Horn (DA) asked about the Auditor-General's findings. The IT strategy and the plan had been approved, but he questioned whether it was funded, and if there was a budget, or whether the SAHRC was expecting to be able to start only, but not to fully implement that year? There was confusion about how the recommendations should be dealt with. The reports on the SAHRC website were not dated, which would cause problems in understanding the context in the future.  The report on safety and security measures in farm areas 2014 was ATC’d by the Speaker in Parliament only recently, in 2017, although Parliament should have dealt with it earlier, especially in the light of farm murders. He therefore asked if the entity in the Office in the Speaker was functional? He asked if the meetings with the Office supporting the Chapter 9 institutions was still ongoing, and when the last one was held.

Ms C Pilane-Majake noted that no commissioner had been allocated to deal with issues of water and sanitation, or the right to land and socio-economic rights in general. She asked if there was any duplication with the Minister for Women, with issues around Children and with Gender Equality. The SAHRC had a massive and broad mandate but a very limited budget which constrained their work. Transformation and redress of imbalances in South African society was in the hands of the SAHRC. With the court judgement that now determined the binding nature of SAHRC recommendations, there may be a way forward to bring about change. The current issues of the right to jobs, racism and informal settlements and access to land meant that there was a need to come up with mechanisms of enforcing recommendations. Freedom and democratic freedom without financial freedom was nothing. Rights awareness was a thing in the past, but moving forward there was a need for a paradigm shift, as there was now a culture of entitlement.  South Africans should understand the progressive nature of rights and the fact that responsibilities come with rights.  There was a need for rotating the United Nations (UN) Chairperson with other Chapter 9 institutions, as some of them were out of the ambit of the UN mechanisms.

Ms Pilane-Majake noted that the leases were currently costing R19m and wondered if the SAHRC could not either buy property, or find an under-utilised state building, although the Department of Public Works could unfortunately not account for public buildings, as the property register had been lost. The Public Protector was looking at presenting 84 clinics per province so the SAHRC should look at a sharing model with other Chapter 9 institutions.

Mr L Mpumlwana (ANC) congratulated the new Commissioners and said that everyone in the country wanted the SAHRC to “come and babysit” but certain things should be prioritised. It should assist the most vulnerable people such as farm dwellers and people in squatter camps.  A proactive approach instead of a reactive approach would assist the Commission to achieve goals so that, rather than waiting for people to bring problems to the SAHRC, the SAHRC should go and listen to the people. Some people would just bring cases to Chapter Nine9 institutions to keep them busy but those should not be high profile. Only those issues that related to the vulnerable should be prioritised. Was the Commission going to promote the indigenous languages? If people did not understand communities, they could not deal with the problems, and theorising would not get anywhere.

Ms M Mothapo (ANC) noted that there was a lot of work to be done for people on the farms, especially in Waterberg in Limpopo ,where the children of deceased farm workers were not allowed to reside on farms or perform traditional rituals as Africans. The admission policies in previously white universities discriminated against black children coming from rural areas. The policy appeared neutral on face value but it somehow did discriminate. She was concerned about accessibility. She was impressed by the clean audit obtained by the SAHRC in 2015/16. She had also been impressed by the Public Protector, who was holding 87 clinics in each province, as opposed to the SAHRC, who had offices in the towns, which made them inaccessible to many who, after travelling for hours, would still have to queue. .She commented that the implementation of the Mining Charter was problematic as mining was taking place but the local communities lived in abject poverty, whereas mining communities had an obligation to plough back.  The land question was very critical and had to be looked into. Despite research and reports into land questions, and government requesting people deprived of land to launch claims, little had happened over the last 20 years. The current claimants need assistance.  The Access to Information Act prescribed duties to the SAHRC but the Information Regulator had taken over, and she wondered if the SAHRC had ever met with the Information Regulator and handed over the report.

The Chairperson observed that, historically, South Africans had been concerned with political rights but in South Africa, there was also a “people’s rights” situation.  The Sekhukhuneland situation is a people’s rights issue because the capitalists were taking from the mines but not addressing people’s rights. For instance, in Ovambo, one community had been forcibly removed and was now living with another community. There were many exiled communities in South Africa. The SAHRC should put mining high on the agenda, especially in Sekhukhuneland.  Another problem was a company from Australia which had been given the right to violate sacred sites where people had been worshipping for ages, despite their constitutional rights. The land issue was critical, with virtually the whole of Polokwane being owned by one person and his family.  In Limpopo people wanted land but the councillors could not give it to the people, and someone was buying land that was under claim. The previous officials, when they knew that their time was coming to an end, had signed 99 year leases to run golf courses and race courses. Chapter 9 institutions had been set up by governments to deal with these issues so that the people can see government delivering.
 

The Office  on Institutions supporting Democracy was dysfunctional and a meeting had to be held. The reason for the existence of Chapter 9 institutions had to be questioned. Religious bodies were problematic. A German missionary society had large tracts of land that had been given by the old governments.  The SAHRC needed to find out whose land it was and who was actually entitled to it. More dialogue was needed with the religious bodies. On 1 May 2017 there would be an Inter-faith dialogue and the SAHRC should attend so that the people did not rise up against the churches. The Department of Arts and Culture had started a dialogue with religious leaders and SAHRC should join that dialogue.

The Chairperson said that nobody had addressed the issues of racism and colonialism better than Oliver Tambo, who, in 1987, had addressed the World Council of Churches. The Chairperson wanted to know what was being done about racism, its causes and effects, which had turned African people into slaves? Healing could not be considered until the effects had been dealt with. Racism cannot be separated from colonialism.  Students were restless and were urging a complete decolonisation of  everything. Even lawyers were saying that the law must be decolonised. That went to the heart of nation building. As soon as possible, the Deputy Speaker should call a meeting of Chapter 9 institutions so that they could look at the challenges. He noted that in the 1980s the impact cases were addressed by lawyers who wanted to attract foreign funding, but now it was necessary to be proactive because the people were restless and the problems were well-known. The SAHRC cannot move too slowly, otherwise it could well be overtaken by events. It was necessary to create a strong culture of human rights.

Mr Majola stated that going back to court to ask that the SAHRC could be released from its obligations could be a double-edged sword. The courts might release the SAHRC from the obligations but the problem was that the Commission had actually asked for something and had received it. He had met once with the Information Regulator (IR) and attempted to meet on two further occasions, the last meeting being planned for 27 March, but the Deputy Minister of Justice had been called to Parliament so the meeting was postponed.  In the initial meeting, the parties had explored the modalities of handing over to the IR , looking at the legislation to see how and who does what. The follow-up meetings were to finalise those points and then put in place the Memorandum of Understanding for the IR to take over. At the moment, the IR was unable to perform the functions, having only just been set up, and it was agreed that the SAHRC would continue to fulfil these functions for the moment.  Both parties would meet again with the Minister of Justice as soon as possible.

He noted the comment on xenophobia. He accepted the suggestions involving religious communities as it was one of the strategies that the Commission had discussed, as the faith-based communities had a wide reach. SAHRC had also discussed how to work with farm workers, with one consideration being to work through the church. The working relationship with the Office supporting Chapter 9 institutions had begun with various engagements, but there was no formal meeting at that point. A meeting had been planned for March but some people were overseas. He noted, in respect of enforcement, that the subpoena powers could be utilised by the Commission and are specifically provided for, but the issue was more about the implementation of the recommendations. He doubted that the Commission could use those powers to enforce implementation.

Mr Majola agreed with Mr Maila that the SAHRC should look into amending the Act and he would ask Commissioner Gaum to look at the matter, and at the ability of other Chapter 9 institutions to pass binding decisions.  He acknowledged that government did not have sufficient money and that all institutions were asking for money, which made the SAHRC hesitant to do the same. The Commissioners went to communities and saw the lack of roads, health facilities, lack of ambulances and so on so they could see that government funding was stretched.  The Commission itself was trying to work harder and smarter. It faced a huge challenge was big and the expectation was that the Commission worked full-out, but it was nonetheless constrained. The treatment of people living on farms, and their squatting when they left the farms presented additional challenges. The SAHRC would like to do more with less, but really had a need for the resources. The Commission would like to meet as many people as possible to talk to them about their rights and their responsibilities. Each Commissioner had been allocated a province so that this person would be the first port of call for a particular province. This would enhance their visibility. The SAHRC Chairperson was the focal Commissioner for Gauteng. He confirmed that no Commissioner was linked solely to a province, but each one was the focal point for a province.

He continued that the SAHRC was trying to arrange meetings with other Chapter 9 institutions but in the past quarter, the Commissioners had to concentrate on finalising plans, the report and the budget for the year end. The recommendations of the Health Ombudsman were on the agenda but the Commission was focusing specifically on the treatment of people with mental disabilities.  The question of how much had been achieved and how far it had moved was important, in order for the SAHRC to develop a strategy.  However, issues did arise that simply could not wait.  The Commission had to decide how to work on complaints, as it received about 5000 complaints, and how to do this without neglecting other issues that the SAHRC must address. Painful choices had to be made. If a complaint was not addressed, there were questions about where the Commission stood and how visible it was. The Commission was very keen to raise awareness of human rights in the country but had to consider to what extent awareness had already been done. 

He referred to the excellent reports that had been drawn up by the SAHRC but the problem at Parliament was that Chapter 9 reports came for filing, but not for attention. The amount of money spent on investigating a problem could simply go to waste if not acted upon.

The Committee Chairperson pointed out that, at the previous meeting, the SAHRC had agreed to write a report about how it would divide Commissioners between the provinces and their duties. He said that the SAHRC was letting the Committee down.

Adv Majola said that the report was in fact dealing with where the Commissioners would be geographically located, and not about what the Commissioners would be dealing with on a daily basis.  He had written a report and provided the list of persons responsible for the areas of concern to the Committee but he was unaware that the Committee wanted the reasoning behind the division of labour.

Mr Bonga suggested that, in view of the shortage of time, it would be useful to get a written report from the SAHRC.

The Chairperson agreed that many of the questions had actually been input into the agenda of the SAHRC, and that the Commissioners should take note but that they did not need to answer. It was important that the Committee call a meeting with all Chapter 9 institutions. He noted that the criticisms had not related to the Commissioners but to the situation and he wanted to commend the Commissioners on the work that they had done.  He advised that the healing matter should be high on the agenda.

The Chairperson of SAHRC asked for permission to write a document on how the SAHRC could create a paradigm shift. He foresaw both opportunities and challenges. The Commission needed time to address the question. He wanted to give strong leadership and there was no need for consensus on every matter.  While he did not need to consult, he should make the decisions and present the report to the Committee even without the consensus of his Commissioners.

The meeting was adjourned.

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