SAHRC Quarterly Reports; Deputy Public Protector Salary; with Deputy Minister

Meeting report

The Chairperson opened the virtual meeting and welcomed the delegation from the South African Human Rights Commission (SAHRC). The delegation consisted of:

Prof Bongani Majola (Chairperson);

Adv Tseliso Thipanyane, Chief Executive Officer (CEO);

Adv André Gaum (Full-time Commissioner: Basic Education);

Adv Mohamed Ameermia (Full-time Commissioner);

Mr Chris Nissen (Part-time Commissioner)

The purpose of the meeting was for the SAHRC to provide the Committee with an overview of its performance for the cumulative fourth quarter of 2019/20, and the first quarter of 2020/21. The briefing included an overview of the SAHRC’s organisational performance environment, the cumulative fourth quarter performance and financial statements for 2019/20, the budget overview and first quarter performance for 2020/21, an overview of personnel-related matters, the anticipated spending pressures and forward funding needs for the 2021 medium-term expenditure framework (MTEF), and the adjustments made to the strategic plan for 2020/25, and the annual performance plan (APP) for 2020/21.

SAHRC Chairperson’s opening remarks

Prof Majola said he appreciated the opportunity to engage with Members of the Committee to exchange ideas that would improve the operation of the SAHRC. The SAHRC’s commissioners had fulfilled their mandate under exceedingly difficult conditions relating to the COVID-19 pandemic. The implementation of the protection and monitoring mandates faced particularly severe challenges because of the national lockdown. The COVID-19 pandemic had impacted every aspect of life as they knew it. It had revealed glaring inequalities in South Africa, and had exposed the extent of the long way they still had to go to realise people’s human rights in the country.

While the greatest focus of the SAHRC’s work was on economic and social rights before the lockdown, the COVID-19 pandemic came with a spike in violations of civil and political human rights, particularly in cases of police brutality and gender-based violence (GBV). The fight against the pandemic had also caused huge damage to the economy. The scarcity of resources meant that there were not enough resources to render effective and quality services. The SAHRC had assessed that the rights to access healthcare, education, water, sanitation and housing, were destined to suffer.

At the same time, South Africa was seeing growing protest actions around the country, more criminal action by law enforcement agencies and high levels of polarisation, all of which posed a great threat to the realisation of the human rights of South Africans. The austerity measures being implemented meant that South Africa would see an increase in unemployment and hunger, and an increase in complaints about a lack of access to food, water and healthcare. With a weak economy, there were many things that the country would have to do without. The SAHRC was concerned that one of those things would include the protection of the human rights enshrined in the Constitution. Another concern was that people’s socio-economic human rights were the easiest target to ignore.

There were also numerous important civil and political rights that needed to be respected and fulfilled, which were often away from the public eye, such as places of detention, prisons, mental institutions, and where people were deprived of their liberty. For these reasons, the SAHRC should not be weakened or limited to fulfil its mandate, as it was the only human rights commission in South Africa. The SAHRC appealed to the Committee that a viable national human rights institution was needed in our country, and greater support was needed in the form of the Committee exercising greater oversight and accountability over the executive branch of government.

The SAHRC was facing financial difficulties and budget cuts, but the centrality and importance of the only human rights commission in South Africa could not be over-emphasised. All efforts should be made to ensure that the SAHRC was able to fulfil its mandate in the widest sense possible.

Committee’s condolences

Adv G Breytenbach (DA) expressed condolences to the SAHRC and the family of Ms Priscilla Jana, Deputy Chairperson of the SAHRC, who had passed away in mid-October.

Mr S Swart (ACDP) also expressed condolences on the passing of Ms Jana, and said that these were difficult times for the country and the SAHRC. He added his condolences for the passing of two former commissioners of the SAHRC, Mr Danny Titus and Mr Thomas Manthata.

The Committee Chairperson said the Committee had written condolence letters to the families of the SAHRC members who had passed away, as well as to the SAHRC on the loss of the Deputy Chairperson. He requested the Committee to observe a moment of silence.

Mandatory attendance of SAHRC Audit Committee:

The Chairperson said that Adv Thipanyane would have received a letter from the Committee inviting the chairperson of the Audit Committee to join the meeting. He enquired whether there were members from the SAHRC’s Audit Committee present at the meeting.

Adv Thipanyane said they had received an apology from the chairperson of the Audit Committee, who was unable to attend this meeting.

The Chairperson stated that in future, the Committee wanted entities to attend Parliamentary meetings with members of the Audit Committee present, as well as with a prepared report from the Audit Committee. This would enable the Committee to be informed of the role of the Audit Committee and the extent to which its recommendations were followed through by entities and departments. It was mandatory that the Audit Committee appear before this Committee.

Adv Thipanyane said that the SAHRC had just been audited and the relevant reports would be submitted to the Committee as mandated.

SAHRC performance overview

Organisational performance environment

Adv Thipanyane commenced the briefing by stating that the SAHRC had now adopted the five-year strategic plan for the 2020/25 period that had been developed. It was underpinned by the need to address the key challenges facing South Africa, which were inequality, poverty, unemployment and violence. The strategic plan contained clearly identifiable human rights priorities and the envisaged outcomes. The organisational performance environment of the SAHRC ensured effective delivery of its mandate, despite significant resource constraints. A stable performance was evident in the SAHRC’s attainment of an unqualified audit outcome for the seventh consecutive year.

Cumulative fourth quarter performance (2019/20)

There had been a gradual improvement in the performance of the SAHRC from 2017. There had been an average of 82% target achievement at the SAHRC over the last five years. The declines in target achievement during 2017 were attributed to transitional leadership arrangements, with a new CEO being appointed, as well as a new cohort of commissioners. Since 2017, there had been a notable recovery because of consolidated strategies and approaches.

The SAHRC had achieved 36 out of its 41 (88%) targets set for 2019/20. The five targets that were not met pertained to strategic objectives in the administration and promotion programmes. The challenges regarding these objectives were receiving attention.

The Promotion Programme (Strategic Objective No. 2) had the highest media profile compared to previous financial years. A higher media profile implied a greater impact of the SAHRC to empower marginalised rural communities, and to deepen awareness around human rights alongside the importance of access to justice. The SAHRC had reached an audience of 9.5bn people, with an average value equivalent of R412.23 million during the 2019/20 financial year.

The Protection Programme (Strategic Objective No. 3) had had a caseload of 11 803 cases during 2019/20. The SAHRC had finalised 8 891 cases (75%), which constituted the highest caseload and the highest number of cases finalised since before 2015/16. The target of finalising 7 000 cases had been achieved. The SAHRC had instituted strategic impact litigation with far-reaching implications, including support and protection provided for defenders of human rights. High-impact inquiries into the socio-economic conditions in the Alexandra township and the pollution of the Vaal River had been conducted. The SAHRC had revised its procedure for handling complaints, to enhance efficiency and effectiveness.

The achievements of the Monitoring Programme (Strategic Objectives No. 4 and 5) included the SAHRC completing the “State of Human Rights in South Africa” report, and the provincial human rights reports. It also included the hosting of seminars on key issues such as gender-based violence (GBV) in South Africa, and submissions made in terms of proposed legislative reforms. The SAHRC had also completed the Promotion of Access to Information Act (PAIA) annual report, which would be submitted with the institutional annual report, and had highlighted that the key trend was the consistently low level of compliance with PAIA reporting by all spheres of government over the last decade. In 2019/20, only 18 national departments, 35 provincial departments and 25 local municipalities had been compliant with section 23 of the PAIA, which showed a significant decrease from previous financial years.

Areas of underachievement included the inadequate implementation of the annual Integrated Human Resources (Capital) management plan, which was only 83% achieved, the implementation of the organisational renewal plan (only 93% achieved), the implementation of the annual information communication technology (ICT) plan (only 93% achieved), the resolution of audit findings (only 59% of findings resolved), and the hosting of the provincial annual human rights dialogues (only four out of nine dialogues hosted).

The SAHRC addressed the audit concerns raised with regard to the entity’s performance during the 2019/20 financial year. It had received a qualified audit opinion for the non-financial performance information processes on the Promotion Programme. Other concerns raised had included the inadequate monitoring of action plans to address internal control deficiencies, the inadequate record keeping ensuring that complete, relevant and accurate information was readily available and accessible to support reported performance, and the inadequate review and monitoring of compliance with all applicable legislation. The SAHRC reaffirmed its commitment to revise and ensure improved monitoring of action plans to address the audit concerns.

Overview of 2019/20 financial statements

A stable performance was evident in the SAHRC’s attainment of an unqualified audit outcome for the seventh consecutive year. Internal controls needed to be strengthened for strict adherence to policy and regulations, to address the problem that irregular expenditure had increased due to partial non-adherence. Risk management processes had been strengthened, together with a review of the policy framework. This year again, no audit comment had been raised by the Auditor-General of South Africa (AGSA) on the 30-day payment rule. The SAHRC had implemented sustainable controls to manage and maintain this standard. Targeted policies and procedures had been reviewed and revised where required.

For the 2019/20 financial year, personnel costs had been allocated a budget of R125.8 million, which had accounted for 70.2% of the actual expenditure of the entity. Corporate support costs were R43.9 million of the actual expenditure (24.5%), which included AGSA fees, office rentals, municipal charges, ICT-related costs, and costs associated with the recruitment and training of staff members. Personnel and administrative-related committed costs amounted to R169.7 million of the actual expenditure (94.7%).

Budget overview (2020/21)

For the 2020/21 financial year, personnel costs amounted to R142.5 million of the allocated budget (72%). Corporate support costs were R51.1 million of the actual expenditure (23.9%), which included AGSA fees, office rentals, municipal charges, ICT-related costs, and costs associated with the recruitment and training of staff members. Personnel and administrative-related committed costs amounted to R193.6 million of the actual expenditure (90.6%). The total budget allocation for 2020/21 included the approved National Treasury surplus rollover from 2018/19, of R9.1 million.
 

First quarter performance (2020/21)

For the first quarter of the 2020/21 financial year, the SAHRC had achieved 25 out of 37 (68%) set targets, leaving 12 targets unachieved.

In the Promotion Programme, the SAHRC’s interventions were necessitated by the challenges brought on by the COVID-19 pandemic, and included responses regarding healthcare, education, human settlements, and water and sanitation across South Africa. Land invasions and evictions had been centred on the Western Cape and Gauteng, while in Limpopo an additional focus was on food distribution and police arrests. The SAHRC had intervened with positive outcomes in many of the specific matters in which it was involved, with either actual improvements or commitments to improve the situation. Strategic engagements with health sector stakeholders had enhanced collaborative efforts, with a focus on the coordination of interventions and an assessment of the state of health facilities and readiness for the COVID-19 pandemic. Particular attention was given to the availability of personal protective equipment (PPE) and ethical considerations for frontline workers.

The SAHRC was further engaged in various initiatives to ensure the adequacy of housing and the protection of vulnerable communities against the adverse implications of the pandemic. It also focused on ensuring that “no child was left behind” and had promoted the rights of the child by extensively engaging with the implications of the pandemic on the right to education. The SAHRC was also in collaboration with the South African Police Service (SAPS) to curb xenophobic attacks in the Eastern Cape, and had participated in engagements to devise sustainable strategies to address the plight of migrants. Lastly, engagements were undertaken to promote the rights of persons with disability and older persons.

Regarding the Protection Programme, the SAHRC commented that complaint trends indicated persistent violations of equality and socio-economic rights. Litigation was based on breaches of the right to equality and dignity involving businesses, religious practices and other public figures. The SAHRC was also actively engaged with matters of unfair discrimination, hate speech, demolitions in the City of Cape Town showing the need for the legal protection of vulnerable persons, the poor state of water and sanitation infrastructure in the Mpumalanga province, and new areas where human rights were vulnerable.

The Monitoring Programme was most impacted by the increased need for monitoring on account of the lockdown period and the COVID-19 pandemic. The SAHRC had monitored the opening of schools, addressing the acute need to conduct widespread physical monitoring and continuing its efforts at fulfilling responsibilities by focusing on COVID-19 compliance and safety issues.

Overview of personnel-related matters:

There was a vacancy rate of 15% at the SAHRC, where 168 of 198 posts were currently filled. The SAHRC noted its reliance on contract workers to meet operational demands from vacant positions, and said this presented challenges relating to labour relations, job insecurity and business continuity risks. Recruitment was currently under way for key vacant positions, including the chief financial officer (CFO), head of legal services, chief information officer, provincial manager for the Western Cape, and the position of senior internal auditor. The profile of the SAHRC in respect of its operations and personnel requirements was not expected to change.

Anticipated spending pressures

The SAHRC noted several operational consequences resulting from the baseline budget cuts for the 2020/21 financial year. The most notable consequence was that the SAHRC would have restricted delivery of its constitutional mandate, which would have an adverse impact on the realisation of human rights. It expressed the need for a minimum of nine human rights officers and nine legal officers needed for additional capacity, which would amount to additional funding of R10.49 million being required.

Adjustments to strategic plan & APP:

The SAHRC’s amendments to its 2020/21 strategic plan and APP had been necessitated by the challenges brought on by the COVID-19 pandemic. The priorities now included in the strategic plan were related to food security, and were incorporated into the land and environment priority areas. Amendments had also been made to the APP relating to the administrative programme, the protection programme, the promotion programme and the monitoring programme. The actual revised documents would be tabled for noting by the executive authority on 27 October, after which they would be submitted to Parliament.

Discussion

Adv Breytenbach referred to the proposed programme of the SAHRC to become involved with schools and municipalities all over South Africa, and enquired if this would not involve overreach because of its financial and human resources restraints. What were the reasons behind this targeted involvement? Regarding the tweets and social media posts regarding Pharma Tax, the SAHRC had indicated that it was going to select one test case to take to court to pass the test of hate speech. Had it identified such a test case yet, and what was the progress made from a legal perspective? Why had the SAHRC received a qualified audit report relating to performance information, and what was the proposed remedy for this problem? What was the progress on the fundraising programme that the SAHRC indicated a while ago that it would embark on?

Mr Swart asked for more information relating to the COVID-19 litigation the SAHRC had alluded to. He expressed his disappointment that the SAHRC had not contested the severity of the lockdown regulations, especially given that other organisations had taken successful legal action. What was the SAHRC doing to ensure that people affected by the COVID-19 pandemic had been able to access their medications, and to ensure they had enough food to take with their medications? The United Nations’ Human Rights Commission (UNHRC) had expressed concerns about the allegations of mistreatment by security forces in South Africa during the lockdown period, such as the case of Mr Collins Khosa. Had the SAHRC had time to respond to this concern?

The Committee had expressed concern about the budget cuts, as the SAHRC already had a small budget. How would the R9.1 million that would roll-over into special projects funding, be allocated? The Chairperson of the Committee had previously stated that he was not in support of budget cuts for the SAHRC. He asked the SAHRC to comment on the mechanism used to hand over their prior duties to the Information Regulator. The Committee was deeply concerned that prior duties were not specifically budgeted for. What was the budgetary impact of this going across to the Information Regulator?

The lack of response from departments, as referred to by the SAHRC, had been an ongoing concern for many years. The SAHRC needed to consider handing over a report to the Committee to bring its attention to the lack of cooperation and responses from provincial departments and local municipalities. This would assist the Information Regulator in taking over the function, especially given the SAHRC’s difficulties of dealing with the matter in the past. Lastly, he asked for comment from the SAHRC on the rising levels of crime, including the tension in the Senekal area, and what role it played to build social cohesion and protect the most vulnerable.

Mr W Horn (DA) commended the SAHRC for their press release calling for calm before the Senekal events. The response of the SAHRC showed the type of even-handed appreciation of the emotions involved, and consideration of the factors at play in the complex situation. The SAHRC was a small but vitally important institution, and it was feeling the effects of budget cuts. Had it started to consider the way in which it could still fulfil its functions in a meaningful way when the proposed budget cuts became a reality? He urged the SAHRC to also address the second generation of basic human rights that would be put under increasing pressure over the next few years because of budgetary constraints. Examples included the right to shelter in the City of Cape Town that the SAHRC was currently in the process of litigating. If one of these types of human rights was on the SAHRC’s agenda, the others -- such as the right to clean water -- must be prioritised as well. The ultimate effect of municipalities’ maladministration was on the people who were left without water.

He urged the SAHRC to take a more focused approach in its strategic plan, and to look at how other second-generation human rights were being eroded by the continued challenges of inequality, unemployment and poverty. The right to education had also been negatively impacted by the COVID-19 pandemic, and there were parents who had decided not to send their children back to school because of health concerns. The monitoring of human rights and its violations was a core function of the SAHRC, but clarity was needed on when the entity decided to litigate on a specific matter. When did the SAHRC decide to do something more than just tabling a report on an issue? Consistency in its follow-up on human rights infringements was the only way in which the SAHRC would earn the greatest respect and credibility that would ensure it fulfilled its mandate.

Ms J Mofokeng (ANC) congratulated the SAHRC on its 25th anniversary as South Africa’s only human rights commission. She also expressed gratitude for its support of Caster Semenya on an international platform. Regarding the non-responsiveness of state institutions and departments, and their ignoring of the SAHRC’s recommendations, did it have a better mechanism of dealing with the issue? She requested the SAHRC to provide the Committee with a list of those departments which were non-responsive. The matter could then be escalated to the Speaker, who would call for action from the leaders of government businesses. They simply could not allow government departments to be the ones that were failing when it came to responding to the recommendations of the Chapter 9 institutions. Was the SAHRC going to continue with its Moot Court Competition, or put the funding into the planned fundraising initiative?

Ms N Maseko-Jele (ANC) said the Committee had previously requested the SAHRC to provide the Committee with a list of those departments that were non-responsive, with no such list being provided. The SAHRC could not complain while it did not respond to the requests of the Committee. The SAHRC had to take the opportunity to condemn the killings of children, farmers and black people in South Africa. It must address the issues of human rights violations at the core, to ensure that South Africa does not continue with a skewed society, but one where the communities were united. For example, the media must refocus its approach and stop reporting only the bad things from black communities. All sides of human rights violations must be addressed.

The SAHRC was the foundation of development for society, and must assist the government to make sure that every person in South Africa was treated with dignity and received services that were delivered equally and fairly. The issue of budgetary cuts was problematic, because the Committee could not condone the SAHRC receiving only a small budget when it carried such a large foundational burden. The Committee needed to encourage the principle that the SAHRC should receive an appropriate budget. The COVID-19 pandemic had exposed a lot of the inequalities in South African society. What research from the SAHRC was available to the entity to assist it and the government to address the impact of the COVID-19 pandemic?

Ms W Newhoudt-Druchen (ANC) started by stating that the “pain of the past was the pain of today.” She referred to a teacher in the Western Cape who had identified himself as African or black, but was a coloured person. He was now being charged with fraud. Why was he being charged? When she travels overseas, she identifies as black, because coloured was a race only in South Africa. What kind of support would the SAHRC offer to a person like that?

Regarding the independent monitoring mechanism for the different international conventions, she highlighted that South Africa had ratified the Convention on the Rights of People with Disabilities a while ago. However, people in the departments forget that South Africa needed to report back every two years on the implementation of this Convention. What was the SAHRC doing to strengthen this mechanism, to ensure that the departmental staff did not forget the conventions the government had ratified? What was the SAHRC doing about the governmental departments that did not achieve the requirement of employing at least 2% of staff with disabilities?

She expressed concern about requiring people to wear masks when they lived with hearing difficulties and had to rely on facial expressions to communicate. What was the perspective of the SAHRC on the rights of people with disabilities affected during the COVID-19 pandemic? South Africa could not afford to issue further budget cuts to the SAHRC, as the work of the Chapter 9 institutions was paramount. One could not allow other departments to waste funds on fruitless or irregular expenditure while the Chapter 9 institutions were in dire need of financial resources.

The Chairperson echoed the issue raised by Members, that the Committee had previously requested the SAHRC to provide the Committee with a list of those departments that were non-responsive, with no such list being provided. The Committee sought to enhance the work of the SAHRC, but could not act in any way if the SAHRC did not furnish the required information.

SAHRC’s response

Prof Majola addressed the issue of the non-responsiveness of state and government institutions, and said that the SAHRC had submitted the list of the institutions that did not respond to or implement the recommendations of the SAHRC. The list submitted had focused more on local governments, as the problem at those departments was more dire and needed to be addressed more urgently, because it was the level at which service delivery took place.

Regarding the question about the SAHRC challenging the severity of the lockdown regulations, he said that there was a health centre which monitored the regulations and conducted research into the constitutionality of every rule relating to the lockdown period. Where the SAHRC found that a rule was problematic, it duly communicated it to the relevant coordinating councils. The SAHRC also contacted the ministerial officials to attempt to rectify situations as soon as possible, but the option of litigation was never excluded. The SAHRC did not litigate where there was no prospect of succeeding. Litigation was time-consuming and expensive, and as such the SAHRC saw fit to discuss the problems directly with the framers of the regulations. The Department of Basic Education (DBE) had even started the practice of sending the SAHRC their proposed regulations for comment before they got published.

During the COVID-19 pandemic, patients who contracted COVID-19 had been given priority over other patients. This was a problem that the SAHRC had been dealing with by engaging with provincial departments and the Minister of Health. Steps were being taken to correct the situation, and the SAHRC was monitoring its progress.

Regarding the United Nations’ concern about police brutality in South Africa, the SAHRC had been taking the issue up with the Minister of Police on an ongoing basis. There was no solution to the problem yet, but it was a matter that the SAHRC was concerned about. It had issued public statements and written many letters to the Minister of Police. Change was needed in the mentality and training of the police.

The SAHRC realised that budget cuts were an inevitable reality. It had started looking at how it could achieve more change with fewer financial resources. However, the budget cuts should not be allowed to render the SAHRC unable to fulfil its mandate. Without human rights, development of a society could never succeed. If one did not support the only human rights commission in South Africa in its efforts to remain effective, the country could not develop in any other regard. The SAHRC did not have the resources to litigate as often as it would like to get the appropriate relief for when human rights were violated. It decides to litigate depending on the estimated impact that the case would make in providing a widespread strengthening of a human right.

The inequalities exposed by the COVID-19 pandemic were not new, but had always existed. The SAHRC had made many reports to the provincial governments and the national departments to identify the problems in society and make appropriate recommendations. It needed to find a way that ensured that the recommendations were implemented when it engaged with departments. The rural and urban divide in South Africa further perpetuated inequalities relating to healthcare, which had been exacerbated by the pandemic.

Adv Gaum reaffirmed that the commitment of every SAHRC commissioner was to ensure that the action taken by the entity was consistent and conducted in a manner that built credibility. The SAHRC had taken on one matter relating to social media posts, which had contained problematic remarks. It involved a police officer from KwaZulu-Natal who had made these remarks, and the SAHRC was taking it further through the appropriate channels.

The SAHRC had been active during the COVID-19 pandemic, particularly with regard to schools, as the right to education of learners had been severely affected by the lockdown and the restrictions that followed. Written communications with provincial Members of Executive Councils (MECs), ministers, unions, school governing body associations and other stakeholders had been taking place on a regular basis. The DBE, apart from sending the SAHRC their proposed regulations for comment before they were published, also included the recent directives pertaining to schools.

A stakeholder forum had been established on basic education. The SAHRC was continuously exploring how it could address the impact of the COVID-19 pandemic on the learners. One of its concerns was the digital divide of learners, where some learners could not access education because of a lack of internet to participate in the online learning measures that had been implemented. The SAHRC had also been in contact with the MECs by means of written correspondence to determine the situation relating to water and sanitation at schools. Every measure possible was taken to monitor the safety of children at schools and to make sure that the education departments were doing their jobs.

Regarding the proposed fundraising project, the SAHRC had a project called “The Right to Read and Write” as part of the right to basic education. The purpose of the project was to establish what the basic requirements were for ensuring fluent reading by the age of 10. National and provincial departments would then be engaged to ensure that the right to read and write was indeed realised. The right to education had been eroded by the COVID-19 pandemic. The SAHRC had litigated on a matter in the Eastern Cape, where undocumented learners had been excluded from education. The SAHRC was strongly advocating for its Moot Court competition to continue, as it was an important promotional activity.

Regarding the Western Cape teacher who identified as African, the SAHRC was yet to make a clear public statement in this regard.

Mr Nissen said that during the last few years there had been a lot of service delivery protests about socio-economic rights in areas such as land, water and sanitation, electricity or housing. Normally when this type of protest occurred, it was unorganised and became violent. The surrounding police services then call on the SAHRC to intervene and stabilise the situation. The SAHRC pleaded with the community that while they did have the right to protest, that right did not include getting involved in violent acts. The role of the SAHRC in this regard was twofold -- to stabilise the communities and to find a sustainable solution to the situation together. The SAHRC was monitoring the hate speech incidents on social media.

Regarding food security, the SAHRC had credited organisations during the lockdown period and had monitored the people delivering food parcels, including soup kitchens. This had helped to ensure that vulnerable people who needed their medication had enough food to take with it.

The SAHRC would be visiting the Senekal area to do a mediation intervention in order to bring together the relevant political parties on the issue of farm killings. The entity was concerned that the custodians of food security for the country were under attack. However, violence was also a problem on the Cape Flats, with the high levels of gang violence which often went unreported. The strategy to protect the farming community needed to be enhanced. The SAHRC was investigating the issue of police brutality and engaging with the SAPS. South Africa had seen an increase in incidents of police brutality, and the matter was being dealt with by the SAHRC at the local government level.

Adv Ameermia said that the Fifth Parliament had been informed of the issue of water and sanitation in the Eastern Cape, and had given the SAHRC its assurance that the situation would be dealt with. The reality on the ground was that the issue had not been dealt with. Regarding the question of what the SAHRC haddone in relation to this matter, he said its reports had been issued indicating that the total water and sanitation infrastructure had collapsed. This had resulted in communities being held to ransom by water tanks, and the dysfunctionality of service delivery was at the core of this issue. The non-responsiveness of MECs and provincial governments exacerbated the lack of water and sanitation situation that was impacting on the lives of the poor and vulnerable communities. Subsequently, the SAHRC had escalated the issue to the Department of Human Settlements and the Department of Cooperative Governance and Traditional Affairs for appropriate action to be taken. A monthly high-level task team would be set up with the SAHRC’s provincial managers, together with the regional water and sanitation departments, to continue monitoring the issue. The issue of a lack of water and sanitation was not a simple problem, but was compounded by municipalities’ outstanding debt.

Before exploring the option of litigating the matter, the SAHRC was now giving a chance to the ministry to issue a structured response on how the issue would be addressed at the national level. A meeting had been scheduled for 17 February 2020 with the highest level of government -- the Intermediate Committee on Service Delivery in the office of the Deputy President -- but it had been postponed because of the COVID-19 pandemic. The SAHRC was now collaborating closely with the Deputy Minister of Water and Sanitation to resolve these issues in a structured way. It was an unacceptable human rights violation that people did not have access to enough water that was clean and safe to use. The issue could not be resolved at a local government level because of corruption, aging infrastructure, and the debt of the municipalities.

Regarding the questions on people with disabilities, 2% of all vacancies in state departments and institutions had to be filled with people with disabilities. The state’s compliance with this requirement was at 0.5%, whereas the private sector’s compliance was 4.5%. This was unacceptable, and the SAHRC had raised its concerns now that the employment equity target had been raised to 7%. A structured plan was required for the state departments and entities in this regard. People with disabilities also had human rights.

The SAHRC had condemned the treatment of Caster Semenya at an international level, and deemed it as a gross human rights violation taking place against an African woman who had proved her athletic prowess. The Committee would be provided with a progress report in this regard.

Prof Majola addressed the question on the SAHRC’s response to farming attacks. The SAHRC had its own investigative powers to investigate the situation on farms, and a report had been compiled after its completion. There was a hearing by former commissioner Mr Titus, who had submitted recommendations to Parliament so that action could be taken regarding its implementation. The SAHRC realised that the attacks on farmers were escalating. This needed to be addressed throughout South Africa, and the SAHRC was conducting webinars in this regard to get to the roots of the problem. The SAHRC would monitor the recommendations made and their implementation.

Adv Thipanyane said the SAHRC was monitoring the situation in detention centres in relation to psychiatric patients, because it was important to determine to what extent its recommendations had been implemented. There was a relationship set up with the Premiers, where complaints could be received regarding this issue to make sure that they did not go unheard.

On the issue of the SAHRC receiving a qualified finding relating to its performance information, it had been due to the entity’s record management. When looking at the SAHRC’s reports, it had over 224 public outreach engagements and 700 strategic engagements. When the auditors had looked for records, some of the documents were not available. The SAHRC was addressing this issue as a matter of urgency, and was exploring the potential for converting to a digital record management system. The roll-over funding of R9.1 million would be used to improve the record management system, and funds would also be diverted to existing projects.

The SAHRC would be assisting the Information Regulator in all aspects of the handover period. It was currently finalising its report on the pollution of the Vaal River. It was concerned about the media’s methods of reporting and the issues of ethics. The public media needed to be sensitised to say that they had a role to play and that they must fulfil their duties in a way that benefited the country.

The SAHRC was a small organisation, and as such it had to be selective with the cases it litigated to ensure that the resources were used optimally. The Committee must lead the SAHRC in the right direction if it goes astray, but also provide the necessary support and encouragement where applicable.

The Chairperson thanked the SAHRC for the encouraging work that it was doing. The Committee would be looking at a few issues.

First, there was the issue about the teacher who had been charged with fraud for identifying himself as African. The Committee requested an update on how that case proceeds.

Secondly, it would appreciate receiving quarterly reports from the SAHRC for the next year on the non-responsiveness of government institutions in implementing its recommendations. It would be a dereliction of Parliamentary duties not to follow up in this regard.

Thirdly, it was important for the Committee to know the type of policy that the SAHRC had around donor funding, to avoid the situation where state institutions were trapped and controlled by their donors.

The Committee understood that the SAHRC was seriously constrained in its number of commissioners. It needed to be furnished with two additional commissioners so that its work was not hampered by the effects of the COVID-19 pandemic and the loss of staff members. The Committee did not support budget cuts being made to the SAHRC, but emphasised that it was inevitable at this stage of the pandemic. He appreciated that the SAHRC was taking the appropriate measures to ensure that it could perform as optimally as possible within its constrained budget. However, the Committee stood by its principle view that the cutting of the budgets of Chapter 9 institutions should not occur because of the constitutional mandates that these institutions had to fulfil.

He proposed that the SAHRC be enabled to address all the Committees’ chairpersons, including the delegations from the AGSA. This would make the work of the entity more effective and impactful, and force government leaders to respond to the issues raised. It would also strengthen the oversight and accountability measures of Parliament and this Committee. Working together with the National Assembly and the National Council of Provinces (NCOP) would enhance service delivery on the ground and enhance the work done by the SAHRC.

The Committee expressed its gratitude for the work done by the SAHRC and its commissioners, as well as its continued commitment to the people of South Africa. The Chairperson commended the SAHRC for its strategic leadership which was demonstrated by attempting to resolve issues before turning to litigation. Organs of state had to respect the Chapter 9 institutions. A failure to do so showed disrespect to the Constitution and to the people of South Africa.

Prof Majola thanked the Committee for its encouraging words, and thanked the Members for their questions and insights. The SAHRC would soldier on and continue its work to realise the values and rights as enshrined in the Constitution for all people in South Africa. The SAHRC expressed its thanks for the work done by Adv Ameermia, who would be leaving the entity as a commissioner in February 2021.

The Chairperson expressed the Committee’s gratitude for the work of Adv Ameermia, and commented that he could make himself available for a second term as a commissioner if he wished to do so. He thanked Adv Ameermia for serving his term excellently.

He thanked the delegation from the SAHRC for the presentation and the Members for their engagement during the meeting.

Deputy Public Protector’s salary

Mr John Jeffery, Deputy Minister of Justice and Correctional Services, spoke on the matter of the President’s letter which was tabled before the Committee regarding the determination of the salary benefits and allowances of the Deputy Public Protector. With the enactment of the Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Law Amendment, Act 22 of 2014, which came into effect on 1 April 2019, the salary of the Deputy Public Protector shall be determined by the President after taking into consideration recommendations of the Independent Remuneration Commission (IRC) as approved by the National Assembly. At the end of June 2020, the National Assembly approved the President’s determination in respect of the remuneration of the Public Protector and the SAHRC.

On 18 August 2020, the President informed the Speaker of his determination of the remuneration of the Deputy Public Protector. The letter was referred to the Committee and indicated that the President did not accept the recommendations from the IRC. The pay gap between the Public Protector and her Deputy is considerable and unique, and no other Chapter Nine institution has such a significant gap. The current salary of the Deputy Public Protector results in her earning considerably less than the executive management of the institution. The Deputy Public Protector must exercise oversight over the executive management, and this issue undermines her authority to fulfil her responsibilities. The salary earned by the Deputy Public Protector’s predecessor was considerably higher than she was given, and this difference was only communicated to the Deputy Public Protector after she accepted the position and started working. Given the above, the President has made a determination of R1.81 million per annum as remuneration for the Deputy Public Protector. National Treasury and the Department of Justice and Correctional Services agree with this determination. If approved by the National Assembly, this determination will be in effect from February 2020 as the date of the Deputy Public Protector’s appointment.

The determination of the R1.81 million per annum is the same as paid to the Deputy Public Protector’s predecessor. The President is of the view that the current Deputy Public Protector should receive the same remuneration as the previous Deputy Public Protector. The remuneration is linked to the position and the office held, and not to the specific individual who occupies the position.

Before the coming into effect of the Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Law Amendment Act, it was the duty of the National Assembly on its own to determine the salaries of the Chapter Nine institutions allowing for inflation increases. In 2005, the Committee recommended that the salary of the Deputy Public Protector be approved in the amount of R619 434 per annum. The annual increments were to be applied in the same way as to other senior management service members. This remuneration levels at the time were between the remuneration levels of a Chief Director and the Deputy Director-General.

In 2007, the then Public Protector revised the salary of the Deputy Public Protector to bring it in line with the earnings of senior managers, and to avoid an anomaly where senior managers were earning more than the Deputy Public Protector. This revision was never submitted to or approved by the National Assembly.

In 2010, the then Public Protector approached the Speaker to address the past discrepancies in the remuneration of the Deputy Public Protector and to consider aligning the salary to that of a judge of the High Court. Following the Committee’s report from 20 September 2012, the Committee recommended that the remuneration and conditions of employment for the Deputy Public Protector is not re-determined as requested by the then Public Protector. The Committee condoned the revision undertaken by the Public Protector in 2007. With that revision, the salary of the Deputy Public Protector was increased between the levels of the Deputy Director-General and Director-General.

Effectively the R1.81 million per annum earned by the previous Deputy Public Protector is the amount determined by the National Assembly. The IRC then went and published its recommendations on 13 February 2020. The IRC made a mistake on page 16 of its non-binding Report by stating that the Deputy Public Protector’s remuneration was R1.446 million and recommended an increase of 4%. That was not correct, and it does not explain why the IRC’s estimate went down from what the Deputy Public Protector was already earning and as was approved by the National Assembly.

When the current Deputy Public Protector started working, the Office of the Public Protector then felt that it had to follow the remuneration as recommended by the IRC. That was not correct, because for the salary to be approved it needs to be determined by the President and subsequently approved by the National Assembly. These procedures were not followed. The Office of the Public Protector then opted to pay the current Deputy Public Protector at R1.504 million, which is the salary that she is currently earning. It is important to note that her salary was not advertised in the position’s advertisement. The current Deputy Public Protector then contacted her predecessor to determine the remuneration for the position. He responded that she was told the remuneration was R1.81 million per annum. The current Deputy Public Protector had a legitimate expectation of the remuneration she would receive, and the IRC’s Report only came out after she was appointed. Lastly, the current remuneration of the Public Protector is R2.3 million, and the current remuneration of the Deputy Public Protector is R1.5 million. The previous Deputy Public Protector was earning R1.81 million. A judge in the High Court is earning R1.8 million, the top notch of the position of Deputy Director-General is earning R1.7 million, and the Director-General’s first notch or remuneration is R1.8 million.

The Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Law Amendment Act provides that the remuneration of the Deputy Public Protector should not be reduced, nor shall the allowances and benefits be adversely affected during the term of her office.

Deputy Minister Jeffery concluded that the Deputy Public Protector had a legitimate expectation to be remunerated at the same rate as her predecessor, and the IRC has made a mistake in its Report by listing the incorrect amount. The President is formally asking the National Assembly to pay the Deputy Public Protector at the same level as the previous Deputy Public Protector. A correction needs to be made in this regard. It is important for the Committee to formally approve the request of the President.

Discussion:

Adv Breytenbach compared the less-earning situation between the Public Protector and the Deputy Public Protector to the same situation ongoing at the National Prosecuting Authority. It certainly undermines the authority of these senior prosecutors to find themselves in the same position as the Deputy Public Protector. She stated that the DA reserves its position on this issue.

Mr R Dyantyi (ANC) thanked the Deputy Minister for the comprehensive overview of the issue. He stated that the Deputy Public Protector has been prejudiced since February 2020. There is no reason the Deputy Public Protector must earn less than her predecessor. He moved for the support of the request of the President and that the Committee takes the decision to correct and restore the position relating to the Deputy Public Protector. It is not a question of making a new decision, but merely restoring the status quo.

Ms Mofokeng stated that it is important to remember that the Deputy Public Protector had a legitimate expectation of the remuneration she would be receiving. She urged the Deputy Minister to consider the same issues relating to the remuneration of all the Chapter Nine institutions. She stated her support for the approval of the President’s request on the remuneration of the Deputy Public Protector.

Ms Maseko-Jele stated her support for the approval of the President’s request on the remuneration of the Deputy Public Protector to be restored to R1.81 million per year. She also urged the Committee to consider the same issues relating to the remuneration of all the Chapter Nine institutions for the sake of fairness.

Mr Swart reserved the ACDP’s position on the issue. However, he stated that it would be very unfair to appoint a female Deputy Public Protector at a lower remuneration than her previous male predecessor earned. The Committee must establish why the IRC made the recommendation it made. There are compelling arguments made to support the approval of the President’s request on the remuneration of the Deputy Public Protector to be restored to R1.81 million per year.

The Chairperson stated the importance of the Committee having a deeper understanding of the issues on this matter. The Committee supports the letter from the President on the remuneration of the Deputy Public Protector to be restored to R 1.81 million per year, with the reservations of the DA and the ACDP.

The meeting was adjourned.