The South African Human Rights Commission briefed the Committee on its Annual Report, saying that any credit for the report should go to the previous Commissioners. One of the key responsibilities that the new Commissioners were tasked with was to review and approve the 2017/18 Annual Performance Plan in January and this went quite well. The new Commission was also required to review and approve the performance and expenditure for Quarter 3 2016/17 though the new Commissioners had not been on board at that time. One of the urgent activities was overseeing the achievement of all the outstanding activities of the 2016/17 APP deliverables. The Commission was able to oversee the finalisation and the achievement of these deliverables. The Commission maintained a fourth consecutive unqualified audit opinion.
The SAHRC instituted litigation cases resulting in court rulings in favour of the Commission’s positions and recommendations. The Commission conducted three national investigative hearings: impact of protest related action on the right to education; socio-economic challenges facing mining affected communities; and racism and social media. An additional highlight was that the Commission finalised 87% of its cases against the annual target of 85%. It completed its advocacy and communications report highlighting key stakeholder engagements conducted to enhance human rights based positions and entrench a human rights culture in South African society; including public outreach engagements targeting rural and peri-urban areas. With visibility and advocacy in the rural area, the Commission provided integrated services including public awareness raising and recording of complaints lodged.
For its Promotion of Access to Information Act (PAIA) mandate, the Commission conducted 14 PAIA trainings. It noted a lack of compliance with PAIA across all levels of government. The SAHRC recommendations included expanding the scope of PAIA, improving procedures and proactive disclosure.
The Commission achieved three of its six targets in improving the effectiveness and efficiency of the SAHRC to support delivery of its mandate. For the resolution of audit findings, only 70% of the target of 100% was achieved due to inadequate capacity. Of the annual target of 100% for compliance with institutional policies, 90% was achieved due to some elements of the corporate service charter not being automated. Plans are underway to automate all elements. Fr\or the target of 85% of implementation of capacity development plan, 61% was achieved due to budgetary constraints. The Commission will improve budget planning. Internal controls and risk management processes have been strengthened. The Auditor General finding on IT governance has been addressed through an IT governance framework.
Cost-containment measures have been put in place and there is a reduction in the use of consultants. A fundraising strategy has been approved by Commissioners to supplement funding. R103.3 million of the expenditure covered personnel costs. R44 million was allocated to cover Corporate Support Committed Costs. R6.2 million was allocated to programmatic work. For the 2017/18 budget, R118.8 million is allocated to cover personnel costs; R40 million for Corporate Support Committed Costs and R13.6 million is allocated for programmatic work. For 2017/18 APP, 89% is work in progress, while 11% has been fully achieved.
In discussion, the Committee Chairperson emphasised that addressing racism, land ownership and water rights is necessary to build the new South Africa. The Committee congratulated the SAHRC on its fourth consecutive unqualified audit. Members asked why there have been delays in dealing with the Esidimeni matter; how it is dealing with non compliance from municipalities on PAIA matters; how it is dealing with the under utilisation of the Equality Courts; if it had jurisdiction of the assault of Gabriella Engels by Ms Grace Mugabe; if it could make an assessment of the living conditions that the people of Marikana informal settlement in the Western Cape are subjected to; if it could investigate the living conditions of farm workers who are the most vulnerable; about the viability of Chapter 9 institutions and its viability; about its approach to communication in the rural areas; to intervene in the recognition of the rights of the Khoisan in the Western Cape. Members stated that the SAHRC must create innovative ways to deal with budget constraints as they noted the SAHRC spends only 4% on its core mandate. The SAHRC was asked to respond to state capture as it seriously impacts on the National Budget priorities with an estimated R100 billion a year being lost.
The Information Regulator briefed the Committee on its activities since its start on 1 December 2016. Its corporate governance structure has been created which consists of the committees of policy and governance, legal and compliance, complaints and dispute resolution, research and outreach, risk management and information communication, corporate services, and enforcement. One of the first activities of this new body was to create a strategic plan and an annual performance plan. Stakeholder engagement was one of their activities and this included an introductory meeting with the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. The Regulator met with the SAHRC on the transfer of the PAIA functions from the SAHRC to the Regulator. Other stakeholder meetings included the Banking Association of South Africa, the Electoral Commission, Civil Society Organisations and the South African Law Reform Commission among others. Members of the Regulator provided training on the Protection of Personal Information Act (POPIA) to various bodies
The Regulator was involved in litigation in the Black Sash case regarding the use of personal information of state grant recipients by Cash Paymaster Services. Although the Regulator is not yet fully operational, they have received 150 complaints about the unlawful processing of personal information. The Regulator will conduct public hearings in all nine provinces on its draft Regulations which will be submitted to Parliament for tabling in February 2018. The remaining sections of POPIA will commence once the Regulator is fully operationalised.
The Regulator created an organogram and met with National Treasury, the Department of Public Service and Administration and the Public Service Commission (PSC) to discuss the organisational structure of the Regulator which is being finalised.
The Regulator does not have permanent office space, but has managed to negotiate temporary accommodation at the Department of Justice. The main challenge is the slow pace of the establishment of the Regulator which has a huge impact on the commencement of the remaining sections of POPIA. Another challenge is the potential underspending of the budget for 2017/18 which could affect the budget allocation for 2018/19 onwards. There are also delays in the finalisation of the organisational structure and they have the challenge of limited human resources capacity and increased workload. The mitigation of these challenges is through ongoing meetings with the Minister of Justice and Correctional Services and Deputy Minister of Justice and Constitutional Development to address the challenges. They are also engaging with the PSC to facilitate the finalising of the organogram.
Members commended the Regulator for the work which they have done thus far. They offered the assistance of the Committee as it was a worry to hear of the slow pace. Were there any hindrances with the Department of Justice in becoming fully operational? Members noted the concern of the SAHRC on the non-compliance by state organs on PAIA and asked the Regulator to help the Committee do an audit of all the state organs and government departments to get a sense of whether there is compliance and whether there are structures in place to enable access of information by the public.
The Chairperson welcomed the South African Human Rights Commission led by Prof Majola. He noted the appointment of its CEO, Adv Thipanyane. He congratulated the SAHRC on appointing a brilliant lawyer of Adv Thipanyane’s calibre.
South African Human Rights Commission (SAHRC) Annual Report
Prof Bongani Majola, SAHRC Chairperson, introduced his team – Deputy Chairperson Commissioner Priscilla Jana, Research Assistant, Ms Ncumisa Willie, CEO Adv Tseliso Thipanyane, Commissioner Andre Gaum, Commissioner Chirs Nissen, CFO Mr Peter Makaneta, COO Ms Chantal Kisoon, and Head of Strategic Support, Mr Siyasanga Giyose.
The Annual Report refers to the period that preceded this Commission. The only members of the SAHRC who were part of the previous Commission were Commissioners Mohamed Ameermia and Bokankatla Malatji. The credit for the report should go to the previous SAHRC under the leadership of Adv Lawrence Mushwana and the Secretariat.
He said that one of the key responsibilities that the new Commissioners were tasked with was to review and approve the 2017/18 Annual Performance Plan in January and that was due at the beginning of January, together with the budget and the organisational structure. He was pleased to report that that went quite well.. The new Commission was also required to review and approve the performance and expenditure for Quarter 3 of 2016/17 although the new Commissioners had not been on board at that time. One of the urgent activities was overseeing the achievement of all the outstanding activities of the 2016/17 APP deliverables. The presentation today would show that the Commission was able to oversee the finalisation and the achievement of these deliverables.
The particular lesson that the Commissioners learnt from the episode was that it was much more beneficial to the new Commissioners when there is a handover of activities so that the new Commissioners can get better direction on how to go about doing their job. He found that the Commissioners were thrown in the deep end because they did not have the benefit of the handover. When the Commission leaves at the end of its term, he thought that it would help the next Commission if the Commissioners are appointed in time. He added that it was not a criticism but a lesson that the Commissioners learnt from the episode.
Another key task performed by the Commissioners was the appointment of the CEO and the SAHRC is very proud to have Adv Thipanyane. The SAHRC decided to select strategic focal areas that each Commissioner was responsible for, some Commissioners have one, others have two. The SAHRC tries not to have too many focal areas that it is dealing with. This is a very important part of the work to decide on how to deliver on its mandate. Presently, it is busy with its strategic planning and looking again at the focal areas within the strategy. The SAHRC had decided already that whereas in previous discussions in preparing for the current year, the SAHRC allocated Commissioners to provinces, it decided that for the next financial year it will only be focal areas but no Commissioners will be allocated to provinces. The process of planning for the next year is ongoing but when they did the focal areas they had to deal with a new action intervening which was in the form of the Esidimeni matter. They are liaising with other organisations to deal with the matter such as the Office of Health Standards Compliance (OHSC), Gauteng provincial government and Section 27. They will have a hearing as recommended by the Minister of health from 15 November and they hope to give a report at the beginning of 2018.
Ms Chantal Kisoon, SAHRC COO, presented the 2016/17 performance of the SAHRC. It had maintained a fourth consecutive unqualified audit opinion. It instituted litigation cases resulting in court rulings in favour of the SAHRC positions and recommendations. The SAHRC conducted three national investigative hearings: impact of protest related action on the right to education; socio-economic challenges facing mining affected communities; and racism and social media. An additional highlight was that the SAHRC finalised 87% of cases against the annual target of 85%. It completed its advocacy and communications report highlighting key stakeholder engagements to enhance human rights based positions and entrench a human rights culture in South African society; including public outreach engagements targeting rural and peril-urban areas. They produced annual research outputs reflecting on the state of human rights in the country. It instituted processes for monitoring stakeholder implementation of recommendations from previous SAHRC reports.
In providing visibility and advocacy in the rural area, the SAHRC provided integrated services including public awareness raising and recording of complaints lodged.
For its Promotion of Access to Information Act (PAIA) mandate, the Commission conducted 14 PAIA trainings. In 2015/16 and 2016/17, 150 and 171 complaints were revived relating to the violation of the right to access information. Several reports continue to show a lack of compliance with PAIA across all levels of government. The SAHRC recommendations included expanding the scope of PAIA, improving procedures and proactive disclosure.
The SAHRC achieved all of its targets for the objectives to promote compliance with international and regional obligations, advance the realisation of human rights, enhance and deepen the understanding of human rights and entrench a human rights culture, and ensure fulfilment of constitutional and legislative mandate. The Commission achieved three of its six targets in improving the effectiveness and efficiency of the SAHRC to support delivery on its mandate. For the resolution of audit findings, only 70% of the target of 100% was achieved due to inadequate capacity. Of the annual target of 100% for compliance with institutional policies, 90% was achieved due to some elements of the corporate service charter not being automated. Plans are underway to automate all elements. For the target of 85% of implementation of capacity development plan, 61% was achieved due to budgetary constraints. The Commission will improve budget planning. Internal controls and risk management processes have been strengthened. The Auditor General finding on IT governance has been addressed through an IT governance framework.
Financial performance 2016/17
Mr Peter Makaneta, SAHRC CFO, noted the SAHRC received an unqualified audit for the fourth consecutive year and a clean audit for the second consecutive year. Internal controls and risk management processes have been strengthened. The Auditor General’s findings raised on IT governance have been addressed through an IT governance framework. Cost-containment measures have been put in place and there is a reduction in the use of consultants. A fundraising strategy has been approved by Commissioners to supplement funding. R103.3 million of the expenditure was allocated to personnel costs; R44 million to Corporate Support Committed Costs; R6.2 million was allocated to programmatic work. For the 2017/18 budget, R118.8 million is allocated to personnel costs; R40 million to Corporate Support Committed Costs; R13.6 million is allocated to programmatic work. Additional funding requests tabled with National Treasury totalled R16 462 375.
Overview of 2017/18 performance
89% of the annual plan is work in progress, while 11% has already been fully achieved. All outstanding targets are due only in the last quarter of the financial year.
The Chairperson said that when dealing with South Africa you cannot deal with it as if you are dealing with a country in Europe. Given its history, major focus should fall on human rights. From the presentation it does not appear that people’s rights are at the centre. There is no indication that human rights instruments are priorities. As early as 2002 there was a UN conference against Racism but at the moment there is a bill on hate speech which is supposed to come to the Committee. He asked if it deals with everything that deals with racism. He does not know what happened to the recommendations on racism. Other human rights commissions report to the UN and there is no report on that. It appears that racism which is at the heart of the problems of the country is enjoying inadequate attention from the SAHRC. The issue of land is also at the heart of the problems. There are people who submitted land claims in 1998 and to this day they do not have the matter resolved as they do not have funding for legal advice. They speak of evictions and public interest law and he asked if there is a bigger public interest that is above the right of the people to land. He asked if the core challenges that are central to building the nation are being addressed. There are people with land restitution but they cannot use it as there are people who own the water rights and there is no indication that water rights are being addressed. Racism, land ownership and water rights are necessary to build the new South Africa. He asked the SAHRC to speak on decisive action taken to deal with these matters.
Mr W Horn (DA) congratulated the SAHRC for the unqualified audit despite instability and the change in personnel. He referred to the IT governance audit finding and said unfortunately this is a repeat finding and they have heard the same promise to improve but it does not change. The real issue is lack of security enabling the SAHRC to be exposed to cyber attacks. He called for more practical details on how this will be addressed in the year to come.
Mr Horn said it is good to hear that a public hearing on the Esidimeni case will be conducted but they are well aware that the SAHRC took the criticism that when it was first reported to it, SAHRC could have done more. The deaths occurred in June 2016 and at first the public hearings were to be in June 2017 and now they are told the hearings are only to be conducted later. He asked why there is a delay especially since the SAHRC was heavily criticised for not proactively dealing with complaints at the time. He asked about the response mechanisms of the SAHRC. The Committee is looking toward an improvement in adequate monitoring responses. He argued that it is indeed a serious need at the moment. In the Free State, the SAHRC in 2014 found the Kopanong municipality to be in breach of basic human rights in respect of water. Three years later the crisis is continuing. There has been an engagement with the director general in the Office of the Premier to try and get a better response. In monitoring responses, when does the SAHRC get to a point where they say engagements and follow ups are not bearing fruit and they must use other mechanisms the Act gives them and even take government to court to enforce improvements.
Mr Horn asked about the handover of the PAIA mandate to the Information Regulator. He noted that the Chairperson had referred to racism and hate crimes. He asked if the mechanisms in place address these. The Committee will deal with the Hate Crimes Bill which aims to further criminalise acts of racism. This was juxtaposed with the Equality Courts being underutilised and he asked if the SAHRC has formed an opinion of whether further criminalisation is the route to go. The SAHRC must advise Parliament in a timely manner if this is the way to go and if they are not pushing aside the option of rehabilitation.
Mr Horn referred to the Forum for the Institutions Supporting Democracy. He said the Committee has not been formally informed but they are aware that in the Office of the Deputy Speaker, there is a process unfolding dealing with the Asmal Report on the Chapter 9 Institutions. He asked if the SAHRC has been part of consulting process on this report. He asked if the engagements are productive and if they see it ending in a situation that will benefit the constitutional democracy rather than detract from it.
Mr S Swart (ACDP) said very good work has been done. He noted Adv Malatji’s involvement in the investigation into the death of three deaf students and others injured in a fire at Leeudoringstad. He asked if further action can be taken to ensure it does not happen again if there are similar fire alarms in deaf schools, which are not going to work.
Mr Swart asked about the PAIA non compliance by municipalities as it is an ongoing matter. There is non compliance and they will need to raise this and assist in the oversight function.
Mr Swart said most of the work to enforce socio-economic rights depends on budgets given to government departments, Chapter 9 institutions and the SAHRC. He asked if it is not a concern to the SAHRC when they hear that economic growth is at 1% when economists say it must be growing at 5%. This is largely due to state capture where there are billions of rands leaving the country. Is it not an issue the SAHRC must be looking at? In two weeks’ time they will have the Medium Term Budget Policy Statement being processed. Is this to be left to the Public Protector or other Chapter 9 institutions? This impacts the ability of the SAHRC to implement socio-economic rights.
Mr Swart asked what guides its decision as to which matters the SAHRC should litigate.
Mr N Matiase (EFF) asked for the SAHRC to share their jurisdiction on incidents of human rights violations. The assault of Gabriella Engels by Ms Grace Mugabe occurred this year and he asked if SAHRC has jurisdiction over such incidents. If yes, what have they done. Have they issued a statement of condemnation or did they look away? He asked for evidence of what they have done or said.
Mr Matiase said the SAHRC presented its financial performance which is impressive as they received an unqualified report except that there are occurrences of fruitless and wasteful expenditure. He asked if the irregular expenditure has been hidden under this concept. He asked if these concepts have been normalised and regularised by the SAHRC as it is the case of many other state institutions. The Public Finance Management Act is clear about these practices which are being normalised. Anything that occurs in vain constitutes maladministration. This must be frowned upon. He asked if any measures had been taken as required by the Act to avoid occurrences of fruitless and wasteful expenditure. Lastly, he asked if the SAHRC has an IT recovery plan. He said that the Committee wants action as this speaks to consequence management.
Mr M Maila (ANC) congratulated the SAHRC on their fourth consecutive unqualified audit. He asked if the SAHRC has reached its peak performance or if there is still room for improvement. If there is, what undertaking does the SAHRC make to achieve this. He commended the SAHRC for the reduction in the use of consultants. He asked if this reduction can be quantified. He said that handover from the previous Commissioner to the new Commissioners is critical and the Committee must be responsible for ensuring the correct timing of this. If it there is not proper handover the SAHRC will be put in the deep end. This is not only with regards to the SAHRC but the same happened with the Public Protector. On compliance with PAIA by municipalities, the SAHRC indicated that only 24 municipalities complied. He asked what recommendations they made to ensure this does not continue.
Mr Maila referred to Marikana informal settlement in the Western Cape where 18 people died in 10 days. This is work for the police but is it not possible for the SAHRC to make an assessment of the kind of lives that the people of Marikana are subjected to. There might be massive human rights abuses taking place in that area. He said they must recommend to government on what should happen for such areas and areas similar to it.
The matter of Esidimeni is long overdue and they are expecting a report. There is key interest in wanting to know about the progress and what must happen after the tragedy.
Mr Maila said that in terms of the SAHRC budget allocation, there is no money but there must be some innovation particularly on the amount of money being paid for rental. This could be used instead to do programme activities. There are a lot of government buildings that can be utilized. If they are renovated they will pay much less. If they purchase the buildings in the coming years, they will not have to be concerned about rent.
Mr L Mpumlwana (ANC) said the most vulnerable people are people on the farms. They are workers but there is no difference between them and slaves. He asked if the SAHRC plans to investigate how they are living. If the farm workers complain, they must leave the farm. If they do not complain they have to suffer. What is the role of the SAHRC? He also spoke about the people in correctional centres who also have no say. They complain and they suffer as a result of that. He asked what the role of the SAHRC is. What is their working relationship with other Chapter 9 institutions? Is there no duplication? How many of the cases are from their own initiative or do they only react?
He asked what their working relationship is with organisations working in their focus areas. What does it take for them to intervene? He asked how many people who do not read newspapers, know the SAHRC. What languages do they use to communicate? He asked what its plan is to get to the ordinary people.
Ms M Mothapo (ANC) said that their predecessors did not present a declaration of financial interests register when the Act states there must be declaration of financial interests. She asked if there is implementation now of this framework and have they disclosed their financial interests.
Ms Mothapo spoke about the eviction of farm workers especially around Waterberg area in Limpopo and she asked for the SAHRC to take that into consideration. She said that the SAHRC mentioned outreach programmes to rural areas. She asked about their approach. In rural areas people take their culture seriously. She has never heard them commenting on Heritage month. She spoke of the serious anomalies taking place with illegal deductions from the pensions of elder persons. Many funeral parlours take money from older people and they are not given receipts. She appealed to them to look in to this.
On service delivery in rural areas and informal settlements, Ms Mothapo noted that in the informal settlements near Cape Town airport, people still use bucket toilets. Living conditions in informal areas are pathetic. She asked if the SAHRC has the capacity to mediate as in Western Cape there are serious challenges. The Khoisan in this province are not recognised. All the indigenous leadership in the provinces are identified except for the Khoisan in this province. She asked for them to intervene as it is a right which has been denied by the Western Cape Government. On service delivery protests, she said it has a negative impact on development in general. Protestors demand water but will burn a library for example and this affects a lot of people. She said that awareness must be intensified.
Ms Mothapo was concerned that they spend 4% of the SAHRC budget on the core mandate. More than 67% was spent on compensation of employees and corporate services.
Ms C Pilane-Majake (ANC) asked for clarity about SAHRC doing away with some of the performance indicators. In terms of the Chapter 9 institutions and the Asmal Report she said they must look at the viability of continuing this. New information must be brought to the table so they can assess whether there is need to collapse the separate institutions into one. She added that there is a need for a follow up to the Racism Conference. She said the atrocities by the Western countries are responsible for predominantly black people being poor in this country. The attitudes of South Africans as a nation are moving backwards and she cited the recent Dove advert. She asked if they monitor advertisements to ensure there are no adverts which perpetuate racism and divide the people.
Ms Pilane-Majake noted comment had been made about how SAHRC can derive maximum benefit out of the budget allocation which is not enough. The allocation must be improved and referred to the leases. Freedom of speech is a human right but in South Africa it is used to create provocation. She asked if SAHRC should concern itself about this as it could border on harassment. This is a society of people who have been sensitised about their rights but do they understand their responsibilities? There must not be situations where the public destroys public property.
She asked how often the SAHRC vets its senior managers as corruption is a challenge in government and vetting assist to know who these people are. On the United Nations Human Rights chair, previously the SAHRC said it must rotate among Chapter 9 institutions. She asked how they engage on this in the Forum for Chapter 9 institutions.
Ms Pilane-Majake asked if they still do the SAHRC Socio-Economic Report and asked how this speaks to poverty, inequality and unemployment. It must be a report which assesses access to socio-economic rights in the country. The recommendations in their report do not speak to this.
The Chairperson said that in evaluating the SAHRC, there is a concern about organisational integrity and cohesion. They have heard there is deployment to provinces. He asked what impact this is having to organisational integrity and cohesion. During the interviews, they repeatedly called for collective responsibility especially in light of the Esidimeni matter where it was clear there was no talk of the organisation acting as one. There must be collective responsibility and the SAHRC must act as one.
The Chairperson said that the questions on the Khoisan and water rights takes them back to the need for dealing with human rights. He said that we cannot deal with the African situation as we are not equal. There are communities that have collective rights which must be attended to. The Khoisan people have a name for Table Mountain which has cultural and spiritual significance but no one has raised changing its name to this.
Prof Majola said they have taken copious notes on the questions and comments. The reason for this is that they are busy with planning. The settlement of Commissioner in provinces was discussed. The lesson learnt from the previous SAHRC was taken seriously. The Commissioners came to a resolution that they will work towards a single SAHRC. They decided that all Commissioners should be based together so there is easier consultation and advice. They have looked at the practicability in terms of convenience and costs which informed the decision.
The Chairperson asked if they have timeframes on when the centralisation will take place.
Prof Majola asked to be given time for the SAHRC to deal with matters of planning. On the UN Chair, the SAHRC became the chair as it is an international human rights commission. An organisation that is not such as the Public Protector is not a fully fledged national human rights commission and cannot qualify to be a member and be in a position to play a direct part. He said that cooperation exists among the Chapter 9 institutions and he has taken steps to meet some of them. The SAHRC and the Commission for Gender Equality have discussed ways in which the two can cooperate. They are planning to have a joint dialogue on violence against women and children. They are looking at how they can work together on cases where there is overlap. The SAHRC has had discussion with the Public Protector. They have come across situations where some form of corruption has taken place and redress can be better achieved through the powers of the Public Protector. They have formed a subcommittee which will draw a memorandum of cooperation that will enable them to use the powers of the Public Protector where necessary and the Public Protector can use the powers of the SAHRC. He has taken steps to see the AG but they have not been able to talk. The SAHRC has also met with the IEC on overlapping matters.
Prof Majola said that a lot of work has been done for the Esidimeni hearing in November. Some of the submissions are large and they do not have the staff to analyse it in a short space of time. They planned to have the hearing in August and a week before the hearing was to start, an external expert on the panel had to withdraw and they could not proceed with the hearing. They had to postpone the hearing. The matter came to them as way of recommendation after they had confirmed the SAHRC budget. They had not made provision for this Esidimeni matter. They have the challenge to accommodate it within the existing resources and things are not moving as quickly as they are supposed to as they must move resources. They are doing the best they can and it is a matter which must be resolved.
Prof Majola replied about the SAHRC response mechanism spoken of by Mr Horn. He is aware of this matter and he has been to the Free State. He raised this matter and had asked for support of the Free State Speaker. When a state entity violates human rights, they engage and negotiate. Due to the financial situation they cannot afford to use more extensive coercive measures. When they realise there is no movement, they go to litigation which is very expensive. It concerns them that the SAHRC is seen as toothless due to this. The SAHRC has engaged with the Department of Justice on a number of times about the utilisation of the Equality Courts. They are trying to push for their greater utilisation. The SAHRC is trying to encourage their own people to present matters at the Equality Court. One of their lawyers has presented a case at the court. The SAHRC needs to push the Department of Justice to publicise these courts.
Ms Priscilla Jana, Deputy SAHRC Chairperson, said that racism is rife in the country and she referred to the Dove advert. She said that 24 years into freedom, this racism is not acceptable. She had asked the SAHRC to make a statement on that. She had travelled to the West Coast of the Western Cape to meet with the Khoisan people. It was distressing to see a community with no hospitals, infrastructure and parks. This is unacceptable to find a community so close to Cape Town deprived of basic socio-economic rights. The Khoisan issue is extremely vital and must be dealt with appropriately. She appealed to everyone responsible to deal with the land issue before South Africa can go forward
Adv Andre Gaum, SAHRC Commissioner, said that the SAHRC is allowed to fundraise according to its legislation. The SAHRC has developed a very specific fundraising strategy to ensure that when they fundraise it is from suitable sources. From their available funds they have really learnt that the funding they receive is not adequate for the purposes of exercising their mandate. The 1999 court judgement in New National Party v The Government on the funding of Chapter 9 institutions said the budget should be located with Parliament. It stated that the Chapter 9 institution should be in a position to set its own budget and the test would be to see if it is reasonably sufficient. He asked the Committee to assist the SAHRC to help to apply that particular test.
On PAIA, he said that they are in a unique position and they must see how they can work with the NCOP to assist them to hold the municipalities to account. The new Commission will make use of its powers such as the power to subpoena. Money spent on rental has been an issue for them. There is a lot of wasted space and they are promoting that there must be one human rights campus based at the Constitutional Court. If they can work towards establishing one campus it will make for much better collaboration between the various Chapter 9 institutions and will ensure there is no duplication. They have proposed as a Commission that they do agree with a merger of Chapter 9 institutions but they will abide by any decision on that.
Mr Chris Nissen, SAHRC Commissioner, noted that on the Khoisan issue, the SAHRC took investigative hearings in 2016 and they are in the process of finalising the recommendations. The Traditional and Khoi-San Leadership Bill has been before Parliament for some time. Until this Bill becomes an Act, many of the Khoisan issues remain only discussion. He hopes that the Bill will be enacted which will give recognition of matters they have raised. On the name of Table Mountain, there have been discussions with National Parks about it. He said that SAHRC has been part of the task team in Marikana. They have observed what is happening and they are in the process of looking at the matters of water and lights.
Adv Tseliso Thipanyane, SAHRC CEO, referring to the Equality Courts, said they would like to see the Committee assisting SAHRC in getting the Department of Justice and the President to bring the Equality Act into full operation. There is a low number of people who use the Equality Courts and as a result the Department is even thinking of shutting down some of the courts. Last year there were only 86 matters yet there are serious challenges of racism and discrimination in the country.
Adv Thipanyane replied that they do not know when they are handing over the PAIA mandate to the Information Regulator. What they are clear on is when they hand over, it must be a “healthy” child. They have made the decision to write to the repeat offenders who are not submitting reports. They are giving them the options of either you submit or you suffer the consequences. They will be subpoenaed or taken to court. There are issues needing the amendment of the PAIA Act.
Adv Thipanyane said the SAHRC had a meeting with the Speaker, Deputy Speaker and NCOP Chair on the merger. They spoke of setting up a task team to look into the matter. The position of the SAHRC is that Parliament and the people of the country have a duty to ensure there is an appropriate and effective mechanism which will promote and protect human rights. The SAHRC will be assisting in the deliberations.
The land issue is very important. They are in the process of coming up with a new strategic plan for next year. The matters which have been raised today are important for them to inform in their own planning.
Adv Thipanyane said the SAHRC must look at where there is the most need to address human rights. The budget is not adequate but there is a responsibility on the side of the SAHRC to make better use of the money given to it.
On socio-economic rights, Adv Thipanyane replied that they are reviving their full monitoring of socio-economic rights in terms of section 184.
He noted that they are mindful of the fruitless and wasteful expenditure. If there are any such issues, he will ensure he is personally held accountable. They will report to the Committee if such incidents occur.
Mr Swart asked for the SAHRC to respond in writing on state capture. He said it is a serious issue which impacts the National Budget. The SAHRC must be engaging with this. An estimated R100 billion a year is being lost. There are multinationals involved in this.
Information Regulator briefing on its activities
Adv Pansy Tlakula, Chairperson: Information Regulator, noted that Members of the Information Regulator took office on 1 December 2016 and held its inaugural meeting on 2 December 2016. They commissioned the Department of Justice to develop its logo and corporate identity which were unveiled on 14 February. The corporate governance structure was created which consists of the committees of policy and governance, legal and compliance, complaints and dispute resolution, research and outreach, Risk management and information communication, corporate services, and enforcement. One of the first activities was to create a strategic plan and an annual performance plan.
Stakeholder engagement was one of their activities and this included an introductory meeting with the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. The Regulator has met with the SAHRC about the transfer of the PAIA functions from the SAHRC to the Regulator. Other stakeholders included the Banking Association of South Africa, the Electoral Commission, Civil Society Organisations and the South African Law Reform Commission. Members provided training on POPIA to bodies such as the Legal Practitioners Forum representing Higher Education Institutions, University of Mpumalanga, African Centre of Excellence for Information Ethics, South African Social Services Agency and Registrar’s Forum of the Council for Built Environment. International stakeholders included the Vice President of Google responsible for Global Public Policy and a delegation of judges from Brazil.
The Regulator was involved in litigation. The Regulator was cited as seventh respondent in the Constitutional Court Case of the Black Sash Trust v Minister of Social Development and others. The Regulator filed an explanatory affidavit to the effect that the personal information of grant beneficiaries belongs to them and could never vest in a third party. The Regulator sought a declaratory order to this effect. Since this court case, they have been continually monitoring the implementation of the aspect of judgment relating to the processing of personal information of grant beneficiaries by CPS.
Although the Regulator is not yet fully operational, they have received 150 complaints on the unlawful processing of personal information. An analysis of these complaints is that they relate to direct marketing through unsolicited electronic communications emanating from banking, insurance and telecommunications. Section 112(2) of the Protection of Personal Information Act (POPIA) empowers the Regulator to make regulations. They have not made provision for information relating to the processing of health information by certain responsible parties such as insurance companies and medical schemes. Interested parties should make submissions on this. The Regulator will conduct public hearings in all nine provinces. The draft Regulations will be submitted to Parliament for tabling in February 2018. The remaining sections of POPIA will commence once the Regulator is fully operationalised. All public and private bodies will be expected to be compliant with its provisions within one year of its commencement.
The Regulator created an organogram and met with National Treasury, the Department of Public Service and Administration and the Public Service Commission to discuss the organisational structure of the Regulator. The Regulator is in discussion with the Public Service Commission for the finalisation of its organogram.
The Regulator does not have permanent office space, but has managed to negotiate temporary accommodation at the Department of Justice on the 23rd floor of the SALU building. They have engaged Department of Public Works to assist with procurement of temporary and/or permanent accommodation.
The allocated budget for 2016/17 was R10 million of which R1.7 million was spent. The allocation of R25 million was received for 2017/18 and possible underspending is foreseen due to not having accommodation and staff.
The main challenge is the slow pace of the establishment of the Regulator which has a huge impact on the commencement of the remaining sections of POPIA. The work is piling up and increasing at a fast pace but they do all the work. Another challenge is the potential underspending of the budget for 2017/18 which could affect the budget allocation for 2018/19 onwards. There are also delays in the finalisation of the organisational structure and they have the challenge of limited human resources capacity and increased workload.
The mitigation of these challenges is through ongoing meetings with the Minister of Justice and Correctional Services and Deputy Minister of Justice and Constitutional Development to address these. They are also engaging with the PSC to facilitate the processes relating to the organogram. The Regulator hopes that through engagement with the Committee, it will assist them to move forward and push to ensure they are fully operationalised as not doing so creates a reputational risk.
Mr Horn asked how the Committee and Parliament could assist. It is a worry to hear of the slow pace. He said that they were aware it would be a slow pace but taking into account the comment about the reputational risk, it is a worry. He asked about the 150 complaints and the work piling up, and if the Regulator able to effectively deal with complaints, if at all. The Department of Justice informed the Committee that there is a seamless relationship with the Regulator. He asked if the Regulator experiences any frustrations or hiccups with the Department of Justice. On financial aspects, he asked if not having a CFO is hampering the effectiveness of the Regulator. What is the target to finalise the organogram and permanently fill the CEO and CFO positions?
Mr Swart asked if there are any hindrances with the Department of Justice when it comes to getting the Regulator fully operational. He noticed that R1.7million of R10 million was spent which is largely controlled by the Department of Justice and asked if there are any problems in the relationship. He is pleased to hear that the Regulator is going to expedite its establishment as quickly as possible so that the other chapters of POPIA can be enacted. He asked how the Committee can assist and that with the organogram they might need to put on pressure. He said that other departments are constraining the Regulator.
Mr Matiase said the work of the Regulator is commendable. They have an understanding of their mandate. It would be unfair to ask much of them as they are still putting their structures in place. He is happy that they are able to demonstrate broad consultation with various stakeholders. He mentioned a concern raised by the SAHRC on the PAIA non-compliance by state organs and government departments, particularly municipalities. He implored the Regulator to help the Committee do an audit of all state organs and government departments to get a sense of whether there is compliance and whether there are structures in place to enable access of information by the public.
Ms Mothapo said that she is concerned that as this is moving at a slow pace, it affects the public. The intervention is critical. She thanked the Department for the way they are running the institutions.
Mr B Bongo (ANC) said what the Regulator has done for now is good work. When he looked back from the time the team was assembled they are proud they have put together a strong team. The task that must be prioritised is the organisational structure as they will be unable to deal with the 150 case of complaints. He is worried about underspending as they must do something around this matter urgently, as in the MTEF they will not be prioritised for the outer years.
Ms Pilane-Majake noted that the SAHRC indicated the two had met but they have not come up with an agreement on how they will transfer PAIA to the Regulator. There must be a timeframe for this. What is important is to look at how the Regulator responds to its mandate so that there are no gaps. As they do not have offices, they must not put too much money into leasing but rather look at how to get government buildings to operate from. They can look at the possibility of buying a building as it will benefit them in the long run. It is good that they have audit systems in place.
Mr Mpumlwana said that he is happy with the work they have done. He emphasised that the Regulator should take its work as very important because the nation relies on it.
Adv Tlakula, thanked the Committed for the feedback and the words of encouragement. She said that the Committee can assist in ensuring those that they depend on for establishment assist them. The Committee can ask these departments how far they have gone in assisting the Regulator. The Department of Justice is assisting them but things do not move as fast as they would like them to. The Minister and Deputy Minister are a phone call way when they need assistance. On PAIA and its non-compliance, the Regulator thought that before they take it over they must do evaluations to understand what lies behind this non-compliance. They have been informed that a lack of resources is a major issue. Once they have done this evaluation they will know how to move forward.
Ms Tana Pistorius, Information Regulator Member, said that in the last two months the complaints have doubled. This shows that the public is aware and is proactive in complaining about the unlawful processing of personal information. The Regulator writes to the complainant explaining that the Act is not in operation yet but they strive towards proactive compliance. After this they see if the complaint falls within their mandate then they write to the responsible party and request a response. The responses have been quite encouraging. Responsible parties want to be compliant. If the Regulator sees a trend, they will follow up with an industry body.
Adv Johannes Weapond, Information Regulator Member, said that the Regulator appreciates and takes the input of the Members that they need to prioritise the organogram. They intend to benchmark internationally and they are focusing on how they can take the organogram and match it to their mandate. They are in the process of making sure the costing model of the organogram is based in a way that the accommodation costs do not exceed a certain percentage. They will take into account the effective recommendations of the option of leasing as opposed to the option of buying.
The Chairperson thanked the Information Regulator for the briefing.
The meeting was adjourned.
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