CRL Rights Commission 2019/20 Annual Report
Cooperative Governance and Traditional Affairs
18 November 2020
Chairperson: Ms F Muthambi (ANC)
The Committee was briefed, in a virtual meeting, by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) on its Annual Report for the 2019/2020 financial year and discussed the work of the Commission.
The CRL had, for the third consecutive year, achieved an unqualified audit. There were however findings on HR related matters within the organisation. The Auditor-General (AG) had flagged a case of irregular expenditure. In this particular case, the value of a contract was erroneously captured, in respect of the service provider that was appointed. The value of the contract for the appointed service provider was recorded as R1 476 913 instead of R4 701 898. An incorrect bidder was therefore appointed. The CRL assured the Committee that it would ensure that in the future, it would return to without findings.
The Committee raised its concerns over other audit findings, such as the fact that management did not consistently prepare regular, accurate and complete financial and performance reports that were based on reliable information. The AG went further and indicated that management had not adequately reviewed and monitored compliance with the applicable laws and regulations. Another issue highlighted by the AG was that the Accounting Officer had not exercised his oversight responsibility, regarding financial and performance reporting and compliance, as well as related controls.
During the briefing on the CRL’s work, the Commissioners indicated that they had conducted hearings on the issue of cults, with input being provided by religious and African spiritual leaders. An investigation into allegations of the abuse of religious rights of communities at the Kwasizabantu Mission’s Church has commenced. Currently, the CRL is conducting hearings and through this process, it hopes to listen to the voices of the victims. Thereafter, the CRL will engage with the church leaders and the alleged perpetrators, to hear their version. Once that process is complete, the CRL will compile a report on its investigations. The intention of this whole process is to foster peace between and amongst members and the leadership.
Members were in agreement with the call by the Commissioners, that Parliament should consider increasing the CRL’s budget allocation. Members were concerned that without this increase, it would not be able to fulfil its mandate and that the country’s reconciliation project would be compromised. The Committee expressed its disappointment in the fact that the Director-General (DG) of the Department of Traditional Affairs had not been present in the meeting, as it was his task to motivate on behalf of the CRL. Nonetheless, the Committee assured the CRL that it would take the matter further.
Opening remarks of the Chairperson
The Chairperson indicated that the purpose of the meeting was to discuss both the Annual Report of the CRL and the work it does. The CRL continues to be the only entity in the Cooperative Governance and Traditional Affairs (COGTA) portfolio that does not attain a clean audit opinion. Some of the findings of the Auditor-General (AG) indicate that there are issues with compliance on procurement. Further, the AG identified that there had been irregularity in both the process of appointing internal auditors and the facilitation of strategic planning. This contributed to the R1.1 million irregular expenditure that occurred during the 2019/20 financial year. The Committee has received correspondence from the entity around the nature of the irregular expenditure. In the same correspondence, the Commission made a commitment to eradicate the irregularities by strengthening internal controls and implementing consequence management. In fact, the CRL’s presentation addressed the matter. The AG also found that the Accounting Officer had not exercised oversight responsibility regarding financial and performance reporting as well as internal controls. It was also found that management did not adequately review and monitor compliance with applicable laws and regulation. The Chairperson suggested that the CRL implement its post-audit action plan, to prevent the stagnation of its audit opinion.
The CRL’s annual performance also regressed, as the achievement of targets fell from 100% in the 2018/2019 financial year, to 76% during the year under review. This affected the administration programme which dealt with organisational development and support services. It also affected, to a lesser extent, the legal services and conflict resolution programme. On the positive side, the CRL has deepened its work on public engagement and education and this should be commended. Many of the set targets, in relation to educational programmes and capacity building workshops, were exceeded by the entity.
During previous engagement with the CRL on the Budget Review and Recommendations Report (BRRR), the Committee highlighted that it was concerned that the legal fees incurred during the 2018/2019 financial year were too high. As a result, the Committee urged the Commission to investigate why the legal fees were that high. The Committee was pleased that the legal fees had since fallen considerably from R1.4 million in the 2018/2019 financial year, to only R141 000 in the current financial year.
The Committee expressed its wish to hear about the CRL’s work, beyond its financial performance.
CRL Rights Commission 2019/20 Annual Report
Prof Luka David Mosoma, Chairperson: CRL Rights Commission, and Mr Cornelius Smuts, Chief Financial Officer (CFO), CRL Rights Commission, briefed the Committee on the Commission’s Annual Report for the 2019/2020 financial year. Whilst the Commission was overall pleased with the outcomes of the audit report, it was disappointed that the entity had received an unqualified audit with findings for the third consecutive year. The AG detected cases of non-compliances in the procurement of goods and services and these matters were reported as irregular expenditure.
Highlights of the 2019/2020 financial year
- 31 performance agreements submitted on time
- A governance structure was reviewed and approved
- Performance Management Development System policy has been approved and implemented
- Unqualified audit report of Annual Financial Statements (AFS) was achieved
- Achieved 76% of the set targets
The entity had five programmes for this financial year, which were:
- Legal Services and Conflict Resolution
- Public Engagement and Education
- Research and Policy Development
- Communication, Marketing, IT and Linkages
The Commission set 17 targets for this programme. Of the 17 set targets, it was able to achieve 11 of them. Some of which were: four quarterly internal audit reports (prepared by the internal auditor), four plenary and four oversight Committee meetings per annum and a Commissioner’s handbook has been approved. It was able to partially achieve three targets. The review of the organisational structure was carried over to the next financial year. Three targets were not achieved; one of which was the failure of the approval and implementation of Human Resources (HR) management strategy and policies. The review of HR management and policies was deferred to the 2020/2021 financial year, pending the finalisation of the appointment of an HR consultant.
Legal Services and Conflict Resolution
The Commission set three targets for this programme. Of the three targets, it was able to achieve two of them. One of its achieved targets was that it responded to 100% of all requests for legal advice. It was able to partially achieve the other target, which was to ensure that 100% of cases are processed in line with the complaints handling manual. Only 32% of cases were processed in line with the manual.
Public Engagement and Education
The Commission set seven targets for this programme. Of the seven targets, all of the targets were met – with two of them having been exceeded. One of the targets exceeded was the hosting of ten educational programmes, instead of the planned six.
Research and Policy Development
The Commission set two targets for this programme. Of the two targets, all of them were met. The Commission was able to develop and adopt a research strategy.
Communication, Marketing, IT and Linkages
The Commission set five targets for this programme and all five targets were met. Two of the targets it met were an approved media engagement strategy and an IT governance framework that has been reviewed.
Financial performance for the 2019/2020 financial year
It was reported that 89.64% of the Commission’s budget allocation was spent on both the compensation of employees and goods and services. The Commission also recorded under spending which was due to the late appointment of Commissioners. This resulted in the late approval of the strategic plan and budget. A case of irregular expenditure also occurred, where the value of the contract was erroneously captured in respect of the service provider that was appointed. The value of the contract for the appointed service provided was recorded as R1 476 913 instead of R4 701 898. An incorrect bidder was appointed and this irregularity was noted by the AG. The irregular expenditure stood at R933 861.
The Chairperson opened the floor for discussion.
Ms G Opperman (DA) asked why the Commission had not implemented the recommended post-audit action plan, as recommended by it in the BRRR earlier this year.
What were the reasons behind the regression of the Annual Performance Plan (APP) targets, which fell from 100% achieved in 2018/2019 to 76% in this financial year?
Previously, the Commission was tasked with investigating the legal fees spent in the 2018/2019 financial year, which amounted to R1.4 million. She asked if the Commission had determined that the fees were in fact inflated.
A tender on outsourcing internal audit functions was awarded by the Commission to an incorrect bidder. In the previous financial year, this amount stood at R636 000. This year, it stood at R1.4 million. Asking for more details on the matter, Ms Opperman asked for reason for the sharp increase.
In addition, the Commission awarded a tender to an incorrect supplier for the facilitation of strategic planning. She asked for more details on the matter.
It was reported by the AG that the Accounting Officer failed to exercise oversight regarding financial and performance reporting and compliance, yet he received a bonus of R38 000. Why had he received a bonus when he had failed to execute his duties?
The performance reports of the Commission have not been accurate. Furthermore they have been incomplete, irregular and not based on reliable information, yet the Chief Executive Officer (CEO) received a bonus of R37 000. Why had he received a bonus when the Commission failed to comply with the regulations of compliance and procurement?
Mr H Hoosen (DA) mentioned that the vision and mission of the Commission indicated how far the country still had to go to reach reconciliation. There are deep divisions between the different groups/sects of people within the country. This can be seen on social media, where the differences between people are on display. Therefore, it was troubling that there had not been enough of an investment in an entity which is tasked to deal with all these various issues. Currently, the Commission only receives R45 million per year. To work towards reducing the levels of racism in this country, all stakeholders have to start working on increasing the level of social cohesion between cultural and linguistic communities. He appealed to Members to assist the Commission in lobbying for increased funding and this should be indicated in the final reports that the Committee will table to Parliament.
In many communities, where there are a number of different religious practices, there are a number of religious sites that accommodate the various beliefs. The reason for this is that previously, municipalities used to plan ahead and when new residential developments were planned, different land was zoned for religious sites. Once the Group Areas Act was abolished, members of the various race groups were able to move into different areas. Municipalities failed to plan on accommodating the various religious faiths. They were meant to zone land for religious sites. This has resulted in several tensions between the various religious communities. For instance, in Durban, whenever the Muslim community tries to set up a mosque, there are significant tensions. The CRL has a responsibility to assist municipalities in that planning. If this is not done, the level of conflicts between different religious groups would continue to occur.
He asked for an explanation on why the entity had recorded irregular expenditure. Had the Commission instituted an investigation into why it had occurred? If it had, how long had the investigation been ongoing? Further, when did it expect that it would be concluded and what action would be taken against the individual/s responsible?
Mr G Mpumza (ANC) welcomed the presentation. There had been no appreciation for the effects of the centuries-long subjugation and domination of the South African communities during the colonial and Apartheid regimes. Both regimes had utilised methods to create self-hate amongst the dominated people and this self-hate has continued into the democratic era. It can be found, for instance, in the service-delivery protests that occur within the country, which are usually violent. A conversation on tolerance and decency has not occurred and it is important that it does. The state needed to increase its investment in the entity, to ensure that it is able to fulfil its mandate of renewing the culture in this country. It should also invest in a diversity programme that seeks to both unite and build the country.
He asked why the Commission had not improved on its unqualified audit opinion. When did the Commission anticipate that it would return to a qualified audit opinion?
He was pleased that the Commission had worked on educating the youth and strengthening community councils. Whilst it was doing well, this was not enough. The Commission does not have a footprint in several communities in the country. Community councils should be found in all communities, both urban and rural but particularly in vulnerable communities that need to be protected.
Mr Hoosen said that given the history of the country, there has (inevitably) been an association of the Afrikaans language with the Apartheid government. This has deepened divisions between other language communities and the Afrikaans language community. More work needed to be done to separate language from racial groups. He asked if they had any plans to ensure that the different language communities were protected and whether there were plans in place to build social cohesion between the various communities. No individual should be targeted for speaking a certain language.
The Chairperson asked what the expenditure trends of the Commission were. Had there been under or over expenditure in the programmes?
In the previous financial year, the Commission paid R336 000 for its outsourced internal audit unit. This amount had escalated to R1.4 million in this financial year. She asked what accounted for this difference.
Prof Mosoma requested that the CEO respond to all questions relating to financial matters at the Commission.
Mr Edward Mafadza, Chief Executive Officer, CRL Rights Commission, said that the reason for variance in the presentation was due to circumstances that prevented the Commission from reaching some of its targets fully. The variances were mainly found in the HR department and several targets should have been achieved through the HR consultant (who had not been appointed at the time). The Commission has since appointed the HR consultant and with his appointment, it hoped that these issues would be solved at the end of this financial year.
Referring to the bonuses paid to some staff members, he said that their performance was not specifically related to the year under review, whilst the payment of bonuses was related to the year under review. Mr Mafadza confirmed that the two were not related.
The Chairperson then questioned why they had received bonuses when the Commission did not receive a clean audit in the year under review. In the previous year, the AG had highlighted all the challenges that the Commission had faced. Was the payment of bonuses approved by the Commission or had the CEO paid himself the bonus.
Prof Mosoma clarified that the criteria to pay bonuses did not only rest on achieving a clean audit. There were other considerations, such as the meeting of set targets and organisational performance. If the Commission had received a clean audit, the CEO’s bonus would have been higher. In the management structure, qualification for a bonus rests on the quality of work performed by the individual in question.
The Chairperson pointed out that the only difference in the bonuses paid to both the CEO and the CFO is R1 000. She asked why the CFO had been paid a bonus. She requested that the Committee be provided with the criteria used by the Commission.
Prof Mosoma said that it would forward the criteria for the performance evaluation of people who qualified for bonuses, to the Committee.
The Chairperson asked whether the Commission rewarded its employees for completing only half of the job required.
Prof Mosoma clarified that a clean audit is one of the criteria used in the assessment of the performance of individuals. Receiving a bonus is not only dependent on the entity attaining a clean audit.
The Chairperson told Prof Mosoma that Members were not convinced by his response.
Mr Mafadza said that the lack of a clean audit related to the failure of revising HR related matters within the organisation. The Commission would like to make attaining a clean audit the centre of performance for every unit. Internal controls was another issue faced by the Commission however, both issues are being attended to.
Although the appointment of internal auditors was classified under irregular expenditure, that did not mean that the auditors had not performed their duties. Several reports were provided by the auditors, to the Audit Committee and the Commission believed that they were value for money. There are only four to five managers within the Commission. As a result, it has been difficult to balance some of the work of the Commission, in a way that is expected. Before the appointment of the internal auditors, the Commission had to rely on other institutions and Government to assist it with the audit process. This derailed its ability to carry out its audit process, as it had to wait for the institutions and Government to make time to assist. With the realignment of the organisation, the Commission would ensure that all problems would be addressed. Both the Senior Manager and the CFO would delve deeper into this matter.
A motivation was submitted for approval of the strategic plan. When considering the various bidders, the Commission had to consider the differing levels of experience. The second bidder was a woman with more experience who understood the dynamics of the strategies required. As a result, the Commission decided to pick her as the preferred bidder. There was only a difference of R4000 in the amount paid to the preferred bidder and the other failed bidders. The in-house audit indicated that the Commission should have put in the specifications that preference would be given to a woman. Due to their failure to do so, the appointment was deemed as irregular expenditure.
Without the two matters of strategic planning and irregular expenditure, in essence, the Commission had been receiving a clean audit year on year. It was confident that once these matters were solved, it would receive a clean audit. It would continue to rely on the recommendations of the Public Service Commission (PSC), which is currently assisting with investigations.
The investigative process would not take long. A meeting between the CEO and the PSC Chairperson had taken place the previous day and it was agreed that the PSC would try to compile and submit its report before the end of the financial year.
Mr Smuts indicated that the post-audit plan had been implemented. The findings on the material corrections made to the AFS differed from the findings on the depreciation of assets, which the Commission had since extended.
The Commission had completed its investigation on the legal fees and it found that there was no inflation of fees. The legal fees were paid at the rates that were meant to be paid. Much of the fees related to the hours spent on the legal work that was completed by the lawyers. He explained that the reduction in legal fees for the year under review related to the fact that certain investigations had been finalised in the prior financial year; thus, the expenditure did not occur this year.
The increase in audit fees was attributed to the appointment of a new service provider for the internal audit – as the three-year contract of the previous internal auditors had expired this year. There was a price discrepancy between the two separate contracts. The new service provider completed work for three quarters of this year, whilst the previous internal auditors only completed work for the first quarter of this year.
Due process was followed in the appointment of the service providers. The Commission motivated why it had chosen the second bidder and in its motivation indicated that the price difference was immaterial, as it only amounted to R4 000. It also motivated that it followed the preferential procurement framework which is to empower companies owned by women, particularly black women. In appointing the service provider, it had to consider the experience of the individual applying which it had done.
The expenditure trend slides were not included in the presentation as the Commission had recently had a virus attack, which resulted in it shutting down the system. However, it still had access to the system. Mr Smuts confirmed that once it had obtained the information, the slides would be forwarded to the Committee.
Adv Kgositoi Sedupane, Senior Manager: Legal Services, CRL Rights Commission, mentioned that the Commission had received 32 bids for the internal audit. The evaluation committee was tasked with evaluating all of the bids. During that process, it looked at the functionality of the bidder, the price and whether they met BEE requirements. All the relevant documents were furnished to the committee and they were in compliance of the requisite aspects of supply chain. The committee had set a threshold of 65% and it ultimately made the determination that it would retain suppliers who had breached the threshold. Once that was done, it then referred to the preferential point system for BEE. In addition, there was a requirement of compliance with the Broad-Based Black Economic Empowerment Procurement Act and the Public Finance Management Act (PFMA). All provisions were complied with. The only challenge emanated with the prices, where there had been an error with the evaluation committee’s use of an annual figure, instead of the three-year figure required for procurement. So, instead of using the figure of R3.4 million, it used the figure of R1.4 million and that’s why the number looked smaller on the presentation. When using the 80-20 calculation method, the bidder had been seen as the least expensive, given that the committee had listed the wrong amount. It was found that the annual amount for the preferred bidder was in the same area as the bids made by other bidders. Based on the calculation, the committee believed that PriceWaterHouseCoopers (PWC) was the most appropriate bidder. It was only once the external auditors had brought it to their attention that the figures were for one year and not three years that this error was picked up.
Prof Mosoma indicated that the audit is complete. The expectation of the Commission was that it would receive a clean audit; however, it was oblivious about the issues found by the AG. At the beginning of his ascendency into the Commission, he has continually emphasised the need to achieve a clean audit.
He appreciated that Mr Hoosen saw the importance of the work of the Commission. There was a need for reconstruction and rebuilding in this country and this would require additional resources.
Religious organisations have approached the CRL on the issue of religious sites. The Commission has engaged with Municipalities regarding by-laws and would take the matter further.
There was a need for a re-socialisation within the country and this would take a lot of work. It required education, particularly within communities. This would also require that the Commission have the necessary capacity. Hence, the Commission has formulated a new reorientation plan, which looks specifically at the objectives of the Commission. The plan also looks at how the Commission can reach rural communities, where the allocation of assets is more patriarchal. Presently, the Commission mainly operates in the urban areas. Its desire is to have a footprint in all areas of the country.
Referring to the question on the association of Afrikaans with the Apartheid regime, Prof Mosoma said that the Commission has had hearings on the equitable use of languages in the country. After the hearings, it contacted all Government Departments, to inquire as to whether all the languages are used equitably within Government. The task is to ensure that all languages are used equitably in terms of commerce and trade – as well as administration. The Commission is trying to protect all languages. Presently, it has used several educational methods, to raise the awareness of languages in this fashion. He hoped that going forward this would be an important project that stands out.
Ms Nomalanga Tyamzashe, Commissioner: CRL Rights Commission, indicated that there are hundreds of dialects that have been classified as languages on the African continent. This isolated communities and impeded on literacy. African governments had not previously been aware that the linguistic barriers were surmountable. Many of them relied heavily on the use of European languages to get around this problem. The Commission was pleased that government had recognised both Nama and Sign language, as official languages in the country. All the languages in the country are dialects of 4 root languages. For instance, isiZulu, isiXhosa and SiSwati all belong to the Nguni language group, of which 85% are intelligible. It would be beneficial, when making policy, to refer to the Nguni group, to ensure that all the communities can have access to materials in their own language. This would be culturally sensitive. The Commission is responsible for resuscitating diminished heritage and to promote all languages, which includes Afrikaans. There was a need to look at languages in a holistic sense. Presently, the Commission is attending to the matter on Afrikaans and this formed part of its report this year.
Prof Pitika Ntuli, Commissioner: CRL Commission, said the Commission mandates that all reports must be completed in all of the official languages in the country and this required additional funding.
Racism is still a plague in the country and the Commission has to assist in redefining the idea of what constitutes a rainbow nation South Africa. He referred to this process as Re-South Africanisation.
The Commission has consistently expressed its love for Afrikaans and it has promoted and appreciated all the languages in the country and would continue to do so in the future.
Ms M Tlou (ANC) welcomed the presentation pointing out that several pastors from the Southern African Development Community (SADC) have moved their operations to South Africa and many of them partake in illicit actions, such as money laundering. It should be expected that the Commission would work with the Department of Home Affairs (DHA), to prevent these individuals from performing these illicit acts. She asked if the Commission knew why these pastors had fled from their respective countries. In addition, why had they been allowed to diminish the culture in the country?
Mr Mpumza mentioned that to ensure that the work towards reconciliation and nation building is done; it would require that the Commission has a footprint in all of the regions in the country. Public engagement and education awareness should be matters that are highly prioritised. It would assist if all the communities had an understanding of harmful cultural and religious practices, such as patriarchy. The Committee desires that the Commission increase its footprint in the country. He asked how the people of the country could rid themselves of the historical anger that has been rooted in communities. The funding of the entity is a matter that the Committee should assist the Commission with.
The Chairperson clarified that the Committee was not stating that there was no value for money in the appointment of external auditors. Members had questioned why there had been a variance in the money spent and why had the AG made a finding on this matter. Had there been no issue, the AG wouldn’t have highlighted it.
Why had the Commission recruited individuals like an HR consultant, instead of appointing someone into the organisation on a fulltime basis because outsourcing skills was more expensive? If it was proven that a cost-benefit analysis had shown otherwise, the Committee would accept the decision.
There were compliance matters that the AG picked up, in particular inter controls. It made no practical sense that the performance of management and senior managers is not based on achieving a clean audit because if the entity did not achieve a clean audit, it was breaching the PFMA.
Lastly, the Chairperson asked the Commission whether or not it had the capacity to complete disciplinary processes internally. She also wanted to know what had made it believe that the Department of Public Service and Administration (DPSA) would be able to conclude the matter on its behalf.
Mr Mandla Langa, Commissioner: CRL Rights Commission, said that the issues of problematic pastors and social cohesion are intertwined. South African’s who know themselves cannot be deceived by people from outside the country. The Commission upholds the cardinal values that drive society, culture, religion and languages. It is providing society the armour that it requires. To reach all areas of society, it needs greater capacity.
Ms Gonodo Mbele-Khama, Commissioner: CRL Rights Commission, mentioned that Parliament must link what is happening now, with the events of the Truth and Reconciliation Commission (TRC) and question what went wrong during the time between then. There is still a legacy of trauma from colonialism and Apartheid. More methods need to be found on how to heal the country.
There has been a collapse of the family structure in the country and the Commission has to look at this primary institution of family, as several people seek pastors to act as father figures – which has resulted in the collapse of the family institution. Several churches supply multiple services to worshipers, such as counselling and miracles. This gap needs to be filled by other institutions and organs of state. Presently, the Commission is facing a major challenge of healing the traumatic syndrome in the country.
Mr Sicelo Dlamini, Commissioner: CRL Rights Commission, said that he was comfortable with the input provided by Members.
Dr Nokuzola Mndende, Commissioner: CRL Rights Commission, mentioned that the Commission is doing its utmost best but without the practical endorsement of Parliament, it is not going to achieve what it needs to achieve.
When black people speak on religion in South Africa (SA), they are not talking about the religious beliefs of their forbearers; they are only referring to the Abrahamic faiths. Indigenous beliefs are relegated to an exclusive culture as if other religions are not based on their respective cultures. African religious faith has not been respected and recognised since 1994. SA is declared as a secular state, yet the state is still based on the Christian faith. She asked the Committee to assist the Commission with obtaining resources to promote indigenous faith in the country.
Presently, there are no sites for African traditional religions. There would be no peace until people stopped insulting African religious faiths. Parliament must also assist in the recognition of indigenous faith.
The Research Committee in the Commission has engaged with the DHA on their recent pronouncement on marriage laws. During the engagements, the Commission found that Roman Law supersedes African Customary Law and this frustrates communities. A document on African traditional religion would soon be published by the Commission. It is doing its best, but it requires assistance, to ensure that it is able to go to rural areas to speak to the people on their traditional faiths.
Ms Ramokone Kgatla, Commissioner: CRL Rights Commission, mentioned that the Commission hoped to leave a lasting legacy through the publishing of its papers. It has requested that the Committee assist it with doing so.
Currently it is assisting the Mapulana people to have their language-Sepulana recognised by the Government.
Mr Reiner Schoeman, Commissioner: CRL Rights Commission, mentioned that the discussion was a historic step and to his knowledge, there had not been such an engagement in past. He expressed his excitement about the future partnership between the Committee and the Commission. The Commission cannot deal with matters in a silo. It has to engage with Parliament consistently and also with the leadership of the various provinces. Engaging with the leadership is important, as it forms part of the solution to the challenges the country is currently facing.
The Chairperson agreed that they are on the right track. She insisted that these engagements should continue into the future. Once the question and answer session had concluded, she said that the Commission would provide the Committee with a briefing of its work.
Ms Tsholofelo Mosala, Commissioner: CRL Rights Commission, asked the Committee to assist the Commission with capacitating community councils, as many of the individuals involved work as volunteers.
Considering that it is raising future, young traditional leaders, it is important to go into the rural areas to raise awareness on the work of the Commission. There has to be a division on the Commission’s youth platform, both provincially and locally. More follow ups and feedback needs to be provided by the research committee on its research reports. This requires additional funds for the Commission, which would ensure that it is continually visible to the communities. The Commission also needs to establish community centres around the country. Without increased funds, it would not be able to achieve its vision.
Dr Sylvia Pheto, Deputy Chairperson: CRL Rights Commission, mentioned that the bulk of the work of the Commission has increased over the years. More funds are required to deal with both cultural and linguistic differences.
The Commission has a major role in bringing cohesion into the country. However, its work has been challenged by individuals who express prejudice. More steps are required to educate South Africans on all of these differences and on how they can deal with certain groups that espouse anti-cohesion rhetoric. Chapter Nine institutions must serve as a fourth arm of the state to ensure that there is stability within the state. The drafters of the Constitution included the Commission as a Chapter 9 institution because of its mandate.
Adv Richard Botha, Commissioner: CRL Rights Commission, indicated that the legal services and dispute resolution department required R300 000 to achieve its functions. Currently, the department only has four staff, which are meant to perform work for different regions of the country. In one instance when the department was involved in the investigation into the abuse of people’s belief systems, the entire budget of the institution was used to complete the report. Fortunately, it was successful, and through its recommendations, it noted changes within that particular community. The Commission would be able to achieve more if it could conduct multiple studies simultaneously.
A person without culture is a person without roots. Culture has been undermined, particularly in Africa. Language is the cornerstone of any culture’s development. The Commission was pleased that for the first time it was seeing students in the Eastern Cape (EC) writing their exams in isiXhosa. It was the mandate of the Commission to assist with the development of all languages, to ensure that all people are recognised. Presently, the problem is that there is a dominance of certain languages, and as a result, many children now grow up only knowing one language and they are losing their roots. In the future, these people might feel that they have lost their sense of self and as result, may struggle to function in society. All issues need to be taken all the way to the ward level. The Commission has considered setting up structures that would work in tandem with ward committees in assisting communities. He was hopeful that the society would eventually improve.
Mr Mafadza confirmed that the Commission did conduct a cost-benefit analysis and it found that it was cheaper to employ internal auditors as consultants, rather than appointing a permanent individual, as this individual would have to be employed as a manager, which the Commission could not afford at the moment. The Commission would be effective in executing its duties once the HR consultant is able to align the structure of the entity.
The CFO at the DPSA is currently conducting investigations. He committed that he would try to finalise the investigation as soon as possible. Usually the Commission’s CFO would conduct the investigations, however, he could not because the matter had occurred under his watch and that would amount to a conflict of interest. As the CEO, he also cannot conduct the investigation as protocol dictates that he must implement the recommendations of the report but in the case where he conducted the report, he would be implementing his own recommendations. He was pleased that the DPSA offered to conduct the investigations free of charge.
Mr Smuts clarified that the change in prices had to do with the tenders it had received, which resulted in them appointing of PWC, of which the annual cost stood at R1.4 million per year. As the previous tender had been agreed to three years ago, the price escalations and adjustments meant that the prices could not be compared. The fees spent on procurement last year were for the previous tender and the last payments were made in the 1st quarter of this financial year. The newly appointed firm started with its work and had completed the last three quarters of the year and were paid at the end of this financial year.
The Chairperson asked if the Chairperson of the CRL had any further remarks.
Prof Mosoma said that the Commission had to improve consequence management and its internal controls, as they are important tools to ensure that the entity does not recede back into an unqualified audit.
The Chairperson mentioned that in their previous engagement in 2019, the Commission had presented the document that contained its activities. She asked that the Commission share some of the projects it was working on, instead of explaining its mandate and work. The presentation should also include some of the challenges it has experienced. She suggested that each Commissioner present on the different projects it is working on. Afterwards, the Committee would engage on each.
Prof Mosoma said the request to present was guided by the fact the CRL thought that the Committee wanted to understand its mandate.
The Chairperson mentioned that the Committee already understood the mandate of the Commission and it did not want to repeat the information.
Briefing on the work of the CRL Rights Commission
The Committee was briefed by Prof Mosoma on the work of the Commission. He mentioned that he would present the last slides of the document, which spoke to the approaches of the Commission’s work.
Approaches to execute the work of the Commission
- Dialogues with communities
- Awareness campaign programmes
- Community councils programmes
- Section 7 investigations
- Conflict resolution
- Risk management workshops
- Internal and external audit committees
- Development of systems to strengthen internal controls
- Skills development of employees
- Supply Chain Management and financial accounting.
Currently research is being done on tribalism, ethnicity, racism and patriarchy, with the intention to formulate a programme of action for raising awareness and public education between and amongst cultural, religious and linguistic communities, to promote tolerance.
The Commission has also conducted hearings on the issue of cults, with input being provided by religious and African leaders. An investigation into allegations of abuse of religious rights of communities at the Kwasizabantu Mission’s Church has commenced. The intention of this is to foster peace between and amongst the members and the leadership.
Prof Pitika mentioned that the Chairperson had captured the issues the Commission is dealing with, quite comprehensively. There are several critical issues at hand in the country and the research output of the Commission has to be up to standard before it is provided to the communities.
Ms Mbele-Khama mentioned that when she entered the Commission, the number of cases it received was at 53, which was not high. Presently it is sitting at over 1000 cases. Many of the cases related to grave destruction and some allegations have been made that Government is the one responsible for that act. Some of these acts occurred in Linksfield and in Limpopo. Grave access has been a challenge in the country and the Commission is trying to mediate between the farming and rural communities to ensure they comply with laws relating to graves. In Mpumalanga, some graves have trees planted over them. In KwaZulu-Natal, some graves have been allocated to more than four community members. This has been classified as the recycling of graves. This serves as a challenge because several cultures view graves as sacred to their traditional practices. There are also instances where graves of people who cannot afford to complete payment, are rented out to others. This also affects cultural rites.
There are many cases which relate to rape allegations in places of worship. Presently, the Commission is trying to work with the Department of Justice and Constitutional Development, to ensure that all of these cases are referred to law-enforcement authorities. The Commission was pleased that the Minister of Police had assigned someone to assist it, to ensure that follow ups are made.
When families move to suburbs, it becomes difficult for the boys to attend initiation schools.
With the destruction of family as a primary institution, many kids are sent to religious sites and find themselves being abused by the religious authorities. The pandemic has affected the Commission’s ability to follow up on the various cases.
Mr Langa mentioned that community councils have to be well capacitated and well resourced. All the violence seen in the country is a symptom of a disease and the Commission needs to play a greater role in tackling this violence.
The Commission currently leads a collaboration with the SA language board.
Dr Mndende agreed with the remarks made by the Chairperson. Presently the Commission is considering the effect of Covid-19 on communities. For instance, during the pandemic, many families could not identify the remains of their loved ones in their allocated graves.
Much of the intellectual property of traditional authorities is stolen by the West. All relevant stakeholders have to consider whether there are cults in African spirituality, as alleged by several groups of people.
Gender-Based Violence (GBV) and femicide remain a problem in the country and the majority of people committing these acts are young men. The Commission planned to have engagements with young males in the communities on these issues, to find out why some of them committed these acts and to (hopefully) find resolutions that will assist in healing society.
African Culture is being undermined by civil marriage. For instance, the Customary Law Act of 1998 states that lobola must be paid when intermediaries are brought to the negotiations. African marriages are not only based on lobola, but there is also much more to it and this needs to be considered when engaging with rural communities.
Mr Schoeman mentioned that he was in an optimistic mood. It was clear that the quality of leadership of both the Commission and the Committee is of a high standard. The Commission should engage with Provinces and create new centres of influence. In his committee, it has the task to expand the links of the Commission internationally. Some links have been created in Germany, for instance. He asked for the Committee to assist the CRL with creating international links. He thanked the Chairperson for her leadership and asked parliament to assist with creating the links internationally.
He Concluded by thanking the Chairperson for her leadership.
The Chairperson said she wanted comments on the work that the Commission has done on the Kwasizabantu controversy.
She asked that it elaborate on the issues relating to Pastor Bushiri.
There is negativity attached to African languages, to the point that no one wants to learn them. Divisions amongst people belonging to different language groups are still prevalent. For instance, many Shangaan and Venda people do not want to learn each other’s languages. She asked what is the role of the Department of Arts and Culture in assisting with the promotion of languages. Was there a partnership between the Commission and the Department? In addition, what was the relationship between the Commission and traditional authorities?
There are several initiations in the EC and now many traditional authorities said they want summer initiations (due to the lockdown). 67 initiates died during the lockdown as result of procedures gone wrong. Several of the authorities have indicated that they will ensure that initiation schools return, regardless of the lockdown regulations. The Chairperson asked what the Commission’s view was on that matter. Which Departments are currently supporting the work of the Commission? Each Department has a role to play in assisting the work of the Commission. She asked whether there were structured partnerships or if they were ad-hoc in nature. In addition, were there any collaborations with research institutions.
Mr Mpumza asked if the cult drive was a crime against humanity. He asked if it is was not a criminal activity they could be subjected in the law. Cults did not only affect rural communities – urbanites have also been hypnotised into following cults. To date, no cult leader has been brought to book for leading a cult.
Ms Tyamazashe mentioned that during the Commission’s previous term, it worked in collaboration with the South African Police Services (SAPS) on the causes of the death of several initiates. In the Commission’s second term, she had noticed that the collaboration with SAPS was not as strong as it was in the first term. In one case, an ingcibi (a man responsible for the circumcision of initiates) was found to be extorting money from families led by women. Often he would abduct the family’s son and take him to an initiation school. He would then demand a ransom from the family for his release. Such instances do not only occur in the Eastern Cape (EC). There have been cases in the Vaal Triangle where many of the boys were abducted and some were not returned. This conduct does not align with the isiXhosa culture. The ingcibi was subsequently sent to jail but there has been no follow-up on the matter since. When a term of the Commission concludes, the incumbent must inform the newly elected Commissioner on what matters the previous Commission had focused on. The Commission has been able to better deal with the complaints relating to initiation schools. This is an important step, as several mothers fear taking their boys to initiation, as many of them die. SAPS have provided the Commission with statistics on the number of boys who have been killed or died during their initiation. It is the desire of the Commission to resuscitate the relationship between it and SAPS. There is a big difference between cultural practices and criminal practices and the Commission has noted that. The Commission promotes initiation schools that follow the correct cultural practices, and not those that promote criminal activities. In the other 8 provinces (excluding the EC) traditional leaders seem to follow a system on how to conduct initiations. In initiation schools found in those provinces, many of the boys are returned to their families without suffering abuse, whereas in the EC, many of the boys who do return tend to be violent towards the women in their lives and they justify their acts on the fact that they have returned as men. The Commission required an increased budget to make the required follow ups. Furthermore, more attention is required in initiation schools in the EC. Presently, the Commission is trying to collaborate with other stakeholders on this matter.
Mr Langa confirmed that the Commission did have collaborations with other stakeholders. It currently has Memorandums of Understandings (MOUs) with some of them. Some of the partnerships are working whilst others require more attention. He confirmed that the Commission does have an ongoing partnership with the DOAAC.
Dr Mndende pleaded with the Committee to assist the Commission with increasing the number of CRL provincial offices, as many people have to call offices in other Provinces, to gain assistance.
Initiation schools are a rite of passage. There are three processes to this passage, the coming in, the seclusion and the coming out. Many individuals are using this cultural practice as a money-making scheme. The Commission has pleaded with the traditional authorities to provide better supervision during the initiation, as many boys have been left psychologically scarred. Local traditional leaders should dedicate a space of seclusion for the boys and ensure that all boys are safe during this process, as many of the boys die during the surgical procedure. The rite of passage is an important cultural process for Xhosa people. She advised that the summer initiations should not be cancelled, as this would apply psychological pressure on the boys, as many would remain as juniors for several more years.
Prof Pitika agreed that police and traditional leaders need to be more involved in the functionality of the initiations. The research committee has resolved to engage with the National House of Traditional Leaders and to introduce the Commission to all provincial wards.
Cults are damaging the people of SA, as many of the people who join these cults, do so out of desperation. Many of them are promised jobs and money if they join. The research committee wants to approach the communities and ask what steps they think should be taken to deal with the cults. All the solutions should come from the input of the people themselves.
He was pleased with the engagement with the Committee and appreciated the frank, but also sensitive input provided by Members.
Adv Botha mentioned that the issue with criminalising cults is that many of the individuals involved believe that they are there voluntarily and are not aware of what has actually caused them to enter into the cult. In court, the victim has to raise the fact that they had involuntarily joined a cult. However, for them to raise this fact, they have first had to recognise it for themselves. The Commission thinks that its Act needs to be strengthened, to be better equipped to deal with this issue. There are no laws that mandate for churches to be registered. Individuals who claim they are pastors are not held accountable by the law. There is also no accountability for anyone within the religious sector and as a result, cult leaders cannot be sanctioned. When there were allegations that certain pastors requested that their followers eat grass, the Commission called several churches to escort them to engage with these pastors; however, it was rebuked by all of them. A licence should be issued in the Act, so that the individuals can be sanctioned. Many of the individuals claim to be a part of a religious grouping but their practices are not part of the religion’s usual practice/s. Currently, the Commission is looking at ways to strengthen its Act. It also has a database it uses to look at all of the cases of cult leaders.
Ms Mosala mentioned that the country is still reeling from hearing that individuals have died whilst practicing their religious and cultural beliefs. All the concerns of the people are the concerns of the Commission. There have been requests that the Commission should ensure that when it visits communities, it should carry the Constitution. If people understand their rights, they would not be deceived by fake religious actors.
Dr Pheto indicated that Section 5J of the CRL Act requires that it establishes a database for cultural, religious and linguistic communities. It has prioritised this exercise but due to inadequate funds, it has not been able to have a proper database. This database would be important for Government institutions and organs of state. To ensure the success of this project, it is important that its relationships with the Department of Social Development (DSD), DHA and the Companies and Intellectual Property Commission (CIPC) are strengthened. Consultation with the various cultural and linguistic communities can only be effective and inclusive once they know where the various communities can be located and how many of them exist. A database would ensure that there would no longer be discussions on whether an individual is a King of a tribe or not. It would be known to all that in SA, there are only 8 to 10 kings.
The Commission would appreciate being treated like other Chapter Nine institutions. She pleaded with the Committee to consider its lack of funding and for Members to raise the matter when the financing of the institution is debated in Parliament.
Pro Mosoma appreciated the opportunity to appear before the Committee.
On Kwasizabantu, the Commission was fortunate that it received support from the Provincial Government of KZN when it conducted its hearings on the matter. Representatives from the Office of the Premier, the DSD and the Provincial CoGTA were in attendance during the hearings. There had been a national outcry on the events taking place at Kwasizabantu and the Commission then decided to intervene. The first intervention was to listen to the voices of the victims and to understand where they were coming from. Some of the allegations were that at some point, the institution became a training ground to thwart African National Congress operatives and to hand them over to the Apartheid government. Some of these individuals died and disappeared. Another allegation was that students were beaten up for no apparent reason. Furthermore, there had been a separation between white and black students and white students were given preferential treatment. Many young black girls were subjected to virginity testing. Many of them alleged that they had been raped. The Commission also heard how some families also bequeathed their wills to the Church. The Commission has not concluded its work on the matter and are there to establish the truth, against the allegations provided. It plans to meet with the Church and the individuals who have been alleged to be perpetrators. MECs have notified the Commission that the process has been objective, which has pleased them. Once the hearings are concluded, the Commission will have to write a report on what the findings are.
Referring to the Bushiri question, he said that Pastor Bushiri had dismissed eight pastors who were of Malawian origin. These pastors approached the Commission to assist them with reconciling with Pastor Bushiri. The only way the Commission could assist was to send a letter to the pastor, where it threatened that based on the severity of the allegations made against him; he would have to be summoned. Subsequently he appeared before the Commission with his lawyer. The Commission requested that he communicate with the pastors, to gain reconciliation.
An MOU with the House of Traditional Leaders and the Moral Regeneration Movement has been entered into. The Commission has a working relationship with the Commission for Gender Equality (CGE), the Public Protector, the AG, the National Prosecuting Authority (NPA), SAPS and the Financial and Fiscal Commission. The Commission has previously hosted a webinar, in tandem with the CGE, on the challenges that women faced. From time to time, it has referred matters to the NPA. In the case of Prophet Lukau, the Commission recommended to SAPS that he be charged for bringing religion into disrepute. It referred to the 1957 Witchcraft Act and indicated that it deals with the issue of perception. The Commission also has cordial working relationships with Provincial Departments. The Commission preferred cooperation and partnerships when dealing with issues because it realised that working on its own would not be effective in ridding the country of the issues it is facing.
Presently it is assessing whether hypnosis can be deemed as a crime. The legal team in the Commission has been assigned to the look further into this matter. It has also been tasked with looking into the community rights jurisprudence. It is important for the Commission to understand how to interpret both its Act and the Constitution properly. It has the right to protect people belonging to different groups.
Distinguishing between willingness and choice has been a challenge. Many followers say they have chosen to join these cults. The question is whether this represents voluntary or involuntary action. Their choices are often influenced by what they have been promised. The Commission had to determine when the individual loses his voluntary action.
The Chairperson said that the Committee appreciated the input made by the various commissioners present in the meeting. Members trusted that the entity was in capable hands. From henceforth, the Committee would want to meet with the Commission on a quarterly basis.
There are a multitude of social ills occurring in the country and the question is what has gone wrong. If the Commission is fully resourced, it can address all that has gone wrong. She expressed her disappointment that the Director-General of the Department of Traditional Affairs had not been present in the meeting and had only joined at the end as it was his task to motivate on behalf of the Commission. The Committee would follow up on this matter up as no apology was forwarded.
She mentioned that the Commission had not spoken about its research institution.
Prof Mosoma said that the Commission has entered into MOUs with the University of Johannesburg, the University of the Witwatersrand, the University of the North-West, UNISA and the University of Limpopo. It was looking to enter into more MOUs with other Universities. It is currently identifying areas for research and the Universities would assist with capacity. Presently it is looking into the impact of Covid-19. Whenever the Commission hosts webinars, or invites Professors from all the Universities mentioned, its desire is to bring on board students of higher learning who can help it deal with issues affecting it.
The Chairperson said she had raised that question because many children are not multilingual. She suggested that the Commission sit with the Committee to identify topical issues so that the engagement is structured in the next engagement. It is the responsibility of the Committee to promote the work of the Commission and to ensure that it is supported financially. The Commission should ensure that it complies with the prescripts. The Committee was pleased with the diversity represented in the Commission.
A database of all stakeholders would assist the Committee with its work going forward.
The Committee is meeting with the National House of Traditional Leadership on 27 November, to address the issues found in traditional schools. She extended an invite to the Commission, as its input would be valuable.
The meeting was adjourned
Muthambi, Ms AF
Bapela, Mr KO
Brink, Mr C
Direko, Ms DR
Groenewald, Mr IM
Hoosen, Mr MH
Mpumza, Mr GG
Opperman, Ms G
Tau, Mr MFP
Tlou, Ms M
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