SAHRC 2021/22 APP; Traditional Courts A/B legal opinion: with Deputy Minister; Budget Vote Reports; Judges, Magistrates & Chapter 9 Office Bearers Salaries

Meeting report

Adv S Swart (ACDP) communicated apologies; he had to leave the meeting after half an hour to attend a budget vote debate.

Briefing: South African Human Rights Commission (SAHRC) Annual Performance Plan and Budget

Prof Bongani Majola, Chairperson, SAHRC, highlighted that the SAHRC had:

-Released the much-anticipated report on Vaal River pollution, which had led the Department of Human Settlements, Water and Sanitation (DHSWS) to “step up” and promise to take action;

-Intervened in protest action, playing a facilitative and peace-keeping role;

-Spent many hours dealing with the (ongoing) issue of the refugees camped in a Cape Town church;

-Calmed the situation in Senekal and, through its Free State office, tackled such related problems as hate speech, stock theft, border control, and respect for the human rights of farmers and farm-dwellers;

-Participated in numerous national and international webinars, particularly among other national human rights institutions in Africa who sought to learn from one another about how to deal with COVID-19-related issues; and

-Continued with litigation, though “on a slower scale.”

Currently, the SAHRC was eagerly awaiting the Constitutional Court’s decision in the Qwelane case, which would have important impact on its other cases.

Proj Majola also said that, during the COVID-19 lockdown, the SAHRC had intervened in several government departments. It had intervened with the Department of Cooperative Governance and Traditional Affairs (CoGTA) regarding the COVID-19 regulations, and with the Department of International Relations and Cooperation (DIRCO) regarding South Africans who found themselves stranded outside the country during the hard lockdown. The SAHRC was very grateful to the cooperation extended by DIRCO and its Minister. It had also successfully intervened regarding the right to basic education. The SAHRC had forged a “very good” working relationship with the Department of Basic Education (DBE), and was “moving in the right direction” in its relationship with the Members of the Executive Council (MECs) for education.

The SAHRC had identified water and sanitation as a national “crisis,” and was giving special attention to tackling the issue at a national level. It had recently decided to litigate against one of the worst violations of the right to water and sanitation. It had also planned to meet with the inter-ministerial committee (IMC), but that meeting had not yet happened, probably due to COVID-19.  

As a result of the COVID-19 pandemic, the SAHRC had diversified its approach to its work, particularly in respect of community and public engagement, monitoring visits and inspections, and investigations. SAHRC had expanded its cooperation with civil society, signing several memoranda of understanding. Increasingly, it interacted with the public through community media and radio, especially to expand its reach in remote areas. The fact that internal communications were now dependent on technology meant that the SAHRC was deeply reliant on, and even constrained by, its technological infrastructure.   

Proj Majola said that the following posed challenges for the SAHRC:

-Uncertainty created by the COVID-19 pandemic, which made planning difficult;

-Constrained capacity at the level of Commissioners, especially due to vacancies;

-Inadequate resources, particularly given a very broad constitutional mandate; and

-Inadequate human rights monitoring capacity.

Monitoring was arguably the most important aspect of the SAHRC’s mandate, but it was also among the most complex and resource-intensive, and it was the most severely affected by the COVID-19 pandemic and lockdown.

On the vacancies, Prof Majola said that the deputy chairperson had died on 10 October 2020, one commissioner’s term had ended at the end of January, and two commissioners had been on prolonged sick leave, though one had since returned. The decrease in the number of commissioners was a significant challenge. For example, legislation fixed the number of commissioners that had to be present at meetings for a quorum, which meant that meetings sometimes had to be postponed. He acknowledged that “every effort” was being made to fill the vacancies, but appealed for continued attention to the issue.

Annual performance plan and strategic plan

Mr Siyasanga Giyose, Head: Strategic Support and Governance, SAHRC, presented the SAHRC’s annual performance plan (APP). He discussed the human rights priority areas identified in the SAHRC’s strategic plan (see slides). These priorities informed the SAHRC’s annual indicators and targets.

The annual targets of programme one, administration, included:

• 100% compliance with key legislative requirements;
• 98-102% expenditure against total budget;
• 80-100% resolution of audit findings; and
• 80-100% implementation of the risk treatment plan, the human capital management plan, the organisational culture renewal plan, the information and communications technology (ICT) plan, the knowledge management plan, and the internal audit plan.

In programme two, promotion of human rights, the annual targets included:

• Host ten human rights calendar day events (nine provincial and one national);
• Convene nine annual provincial human rights stakeholder engagements;
• Host nine provincial human rights dialogues; and
• 80-100% implementation of the action plan on 2020/21 anti-corruption conference resolutions, the action plan to empower community human rights champions, the provincial action plans to promote functionality of equality courts, and the programme of action for promoting gender equality.  

In programme three, protection of human rights, the annual targets were:

• Finalise 5 000 complaints and enquiries;
• Undertake 26 initiatives to address systematic violations;
• Institute 15 strategic impact litigation matters;
• Complete 2020/21 complaints trends analysis report;
• Hold two national inquiries, one on access to healthcare and one on social cohesion, non-racialism, and unfair discrimination in schools;
• Conduct 18 strategic stakeholder engagements;
• 100% utilization of the customer relationship management (CRM) system; and
• Revise complaints handling procedures.

In programme four, monitoring of human rights, the annual targets were:

• Implement 80-100% of the action plan from the children’s rights mapping exercise;
• Complete reports on the state of human rights in South Africa and in the provinces;
• Complete report on international and regional human rights;
• Submit report on National Preventative Mechanism (NPM) monitoring with regard to the Optional Protocol to the Convention Against Torture (OPCAT);
• Submit 100% of identified national human rights institutions (NHRI) reports by deadline;
• Submit 100% of identified legislation by deadline; and
• Complete Protection of Access to Information (PAIA) annual report.

Mr Giyose also discussed specific areas for litigation and action which had been identified towards achieving the desired outcomes in programmes two and three (see slides).

Budget overview

Adv Tseliso Thipanyane, Chief Executive Officer (CEO), SAHRC, welcomed Ms Sara Nyawa Dikwayo, who had been appointed Chief Financial Officer (CFO) in April.

Adv Thipanyane said that SAHRC’s total budget for 2021/22 was R206 million, with R195 million from the National Treasury grant and the remainder from interest income and surplus rollover. The SAHRC was continuing with cost-cutting measures that had begun in 2019/20. These included frozen posts, a redesign of the organisational structure, and reduced office size. Last month, the SAHRC had moved into its new offices, which were around 2 5000 square metres in size, compared to 7 000 square metres at the old offices. The offices were being renovated and services like ICT would be introduced from Friday.

66% of the budget was allocated to personnel costs, but this was aligned with the service-driven mandate of the SAHRC. The budget was allocated as follows across programmes:

• R90.3 million (44%) to programme one, administration;
• R95.6 million (46%) to programme two, promotion of human rights;
• R9.7 million (5%) to programme three, protection of human rights; and
• R10.3 million (5%) to programme four, monitoring of human rights.

Closing remarks by the CEO

Adv Thipanyane said that, following the conference the SAHRC had hosted in March, there was a lot of work to be done around corruption. Corruption had so severe an impact on the realisation of human rights that it was “tantamount” to a serious rights violation. The SAHRC wanted to focus particularly on the protection of whistleblowers, and would have many dialogues on that issue.

Following the suicide of a Limpopo learner who had been bullied, the SAHRC was planning a hearing on violence in schools in the province. The hearing would inform its other interventions around violence in schools, but also its work on broader education issues. As mentioned in the presentation, one of the two national inquiries that the SAHRC was planning concerned racism in schools, and especially in private schools.

Adv Thipanyane said that the SAHRC was about to sign a funding agreement with the United Nations Children’s Emergency Fund (UNICEF) for the year. This would allow the SAHRC to continue the work it had been doing on children’s rights. On the other hand, it was the last year of the NPM’s funding cycle. The NPM did important work, revolving around the constitutional rights against torture and against cruel, inhumane, and degrading punishment. The SAHRC was engaging both with Treasury and with other stakeholders to seek a way forward for the NPM.

Adv Thipanyane said that another challenge for the SAHRC was “surviving the COVID-19 storm.” Digital platforms had allowed staff to work from home, which had kept the SAHRC going. It was also grateful that it had been allowed to continue doing its work even during the hard lockdown. COVID-19 had had a major impact on the SAHRC, and it had been trying hard to stay “afloat.” Staff members and commissioners had been personally affected by COVID-19, and one staff member had died. SAHRC was considering how it could improve its approach to COVID-19-related issues.

Finally, the SAHRC had been “battling” to fill the head of legal services post. That unit played an important role in advancing the SAHRC’s protection mandate through high-impact litigation. Moreover, it was crucial for the prevention of human rights violations that people knew that rights violations would incur punishment. The SAHRC had tried unsuccessfully to headhunt for the position, but it would try again. 

Discussion

On behalf of the Committee, the Chairperson expressed condolences for the death of the staff member. He welcomed the new CFO and reminded her that the Committee was there to support her and the SAHRC.

Dr W Newhoudt-Druchen (ANC) repeated the Chairperson’s condolences and welcome. She thanked the SAHRC for the presentation. She deeply appreciated the difficult role that it played during the COVID-19 pandemic.

Dr Newhoudt-Druchen asked what the SAHRC’s work around basic education entailed. Adv Thipanyane mentioned racism in private schools – what else did it do? She asked the SAHRC to visit farm schools if they had a chance to do so. She had visited some farm schools and, at one school, a classroom had a canvas wall rather than a proper wall. That meant that the children – who were tiny kids, in grade R – were subject to the weather, a situation that was not conducive to learning, especially during winter. Was this kind of situation within the SAHRC’s ambit?

Dr Newhoudt-Druchen also asked the SAHRC to visit schools for deaf children, if possible. During the COVID-19 pandemic, everyone was obviously required to wear masks – but this prevented communication among deaf people who needed to see the face and facial expressions of the person they were talking to. This was a personal matter for her, as a deaf person. At the beginning of the pandemic, it had been difficult for her to go out, because she knew she would not be able to communicate with people. Of course, masks played an important role in protecting against COVID-19, but that needed to be weighed against the fact that they were “communication barriers” for deaf children. This could be a problem in a school environment, where it was compulsory for both teachers and students to wear masks. Could the SAHRC monitor the situation, especially in terms of the United Nations (UN) Convention on the Rights of Persons with Disabilities, and see how the mask protocols were affecting deaf students? 

Prof Majola replied that, as he had said in his opening remarks, monitoring was a crucially important but very challenging aspect of the SAHRC’s mandate. It was resource-intensive, and the SAHRC did not have sufficient resources. It did visit and monitor both farm schools and schools for people with disabilities, but unfortunately, because of resource constraints, it could not visit all of them. One of the reasons that SAHRC had adopted pro-human rights budgeting as a priority (see slide 5) was that the government had a constitutional obligation to, in its budgeting, adopt policies that served human rights. The arbitrary budget allocations were never enough to do everything that the SAHRC was expected to do. SAHRC was aware that there were ongoing rights violations in basic education – for example, in farm schools, and with pit latrines. But those issues needed resources. The SAHRC visited schools, monitored the issues, complained about them, and tried to intervene. Ultimately, it had to litigate, which was very expensive. It had just concluded a case which had cost more than R1 million. On the mask protocols in schools for deaf children, Proj Majola would raise the issue with the relevant commissioner, Adv Bokankatla Malatji – who was not in the meeting due to power cuts – so that it could be given attention.

Andre Gaum, Commissioner: Basic Education, SAHRC, confirmed that the SAHRC was monitoring schools, including farm schools, to the extent its resources allowed. During the COVID-19 pandemic, the SAHRC had formed a section 11 committee for the purposes of monitoring. That process had involved civil society organisations who were not able to work independently but who could contribute under the auspices of the committee. Thus the SAHRC continued to monitor schools throughout the pandemic, including during the hard lockdowns.

Adv Gaum said that the example Dr Newhoudt-Druchen cited from her farm school visit was “absolutely unacceptable.” The national norms and standards for school infrastructure were very clear about education departments’ obligations, and the SAHRC rigorously enforced those norms and standards. He asked Dr Newhoudt-Druchen – who was in regular contact with the SAHRC about cases she referred to it – to provide him with the details. He assured her that the SAHRC would address the issue. He would liaise with Adv Malatji about the mask protocols in schools for deaf children and, upon making a determination, the SAHRC would engage with the relevant education departments.

Dr Newhoudt-Druchen asked for an update on the advisory committee that advised the SAHRC on issues relating to disability and human rights.

Dr Newhoudt-Druchen asked about the independent monitoring mechanism. Was the mechanism in place, or had the target simply been removed from the SAHRC’s APP?

Mr X Nqola (ANC) noted what Proj Majola had reported about collaboration between the SAHRC and government departments, especially DBE. He believed that among the dominant factors driving protests across the country were socioeconomic rights, particularly as encapsulated in sections 26 and 27 of the Constitution, and especially the right to water and sanitation. Had the SAHRC pursued collaboration or some sort of cooperation agreement with DHSWS, to ensure that DHSWS was not violating people’s constitutional rights in this regard? In addition, district municipalities were often given responsibility for water services. Had the SAHRC visited districts to monitor the provision of services and to ensure that municipalities were not violating people’s rights?

The Chairperson noted that Prof Majola had said that, because of COVID-19, the SAHRC had not been able to meet with the IMC about water and sanitation. But there were other ways of meeting and communicating – such as the virtual platform the Committee was using that very moment to meet with the SAHRC. The meeting with the IMC concerned an issue that was – as Members said – crucial, and it had been delayed for a long time. Was COVID-19 a good reason for that delay? He asked for an update, so that the Committee could see how the issue should be taken forward.

Prof Majola replied that there had been “engagement” between DHSWS and the SAHRC on water and sanitation, even if there had not strictly been “collaboration.” The SAHRC had engaged at various levels, including with the Minister and especially with the Deputy Minister of Water and Sanitation, Mr David Mahlobo. It had told Deputy Minister Mahlogo that the situation was now a national crisis that needed to be attended to urgently. He thought the Minister was also aware that there was “a big problem” with water and sanitation. The SAHRC was also monitoring district municipalities. For example, the legal action he had mentioned earlier was against a district municipality in the Eastern Cape. It was also monitoring the Free State, Mpumalanga, and other places where the water and sanitation situation was “very, very bad.”

However, Prof Majola said that government needed to play a role, too. The meeting with the IMC had been proposed and agreed to, but had not happened. In response to the Chairperson’s question about the meeting, he said that the delay had not only been due to COVID-19. The SAHRC had been told repeatedly that the Deputy President was unavailable, and the matter had never moved beyond that. The SAHRC had been called to appear before the technical committee of the IMC, and then had been promised that the actual meeting of the IMC would take place – but it never did. It had waited, had “asked and asked” to appear before the IMC, and had sent reminders. The IMC needed to be convened by the Deputy President, so that the SAHRC could make its presentations and recommendations, and plans could move forward. It had tried to arrange the meeting, but perhaps there was room to try again. Former commissioner Adv Mohamed Shafie Ameermia had spent a lot of time pushing these issues, particularly towards the end of his term. Proj Majola did not know how to unblock the process and would be very pleased to get the assistance of the Committee.

Adv Gaum added further details about the SAHRC’s engagements on water and sanitation in the context of education. The SAHRC had already done “a lot of work” in this regard, engaging the national DBE and the education MECs. It was determined to deal with the matter of water and sanitation at schools. Especially during COVID-19, every school should have, at the very least, a water tank and temporary sanitation facilities. DBE had reported, based on information it received from the provinces, that every school in the country met these minimum standards. The SAHRC had discovered that this was not true. There was a communication gap somewhere, or DBE was not being provided with correct information. So he had engaged all the education MECs, asking for specific data and details about water and sanitation in schools. Unfortunately, some of those MECs were not responsive. The request had first been sent in August 2020. Since then, some MECs had “drastically” delayed the provision of the information. The MECs in the Eastern Cape and the Free State simply did not respond to the request. The SAHRC had decided to subpoena those two MECs for the relevant information. Before the end of the day, he would write another letter to every MEC, asking for updated information. The SAHRC had “no choice” but to subpoena any MEC who did not respond timeously to the request this time around. 

Adv Gaum said that the SAHRC had decided to begin focusing on, and intervening in, “dysfunctional” municipalities that failed to provide basic services. It was already intervening in one case, taking a municipality to court due to its non-responsiveness and its failure to ensure basic service delivery.

Mr Nqola asked what role the SAHRC had in initiatives relating to gender-based violence and femicide (GBVF), which the President had called a second pandemic. He thought that GBVF violated the rights to dignity and to life, as provided by sections 10 and 11 of the Constitution. However, in following high-profile GBVF cases, he had not seen SAHRC playing much of a role in ensuring that the perpetrators of these rights violations were “taken to book.”

Prof Majola agreed that GBVF was an affront to the rights to dignity and life. However, each chapter 9 institution had a specific mandate, and GBVF was covered by the mandate of the Commission for Gender Equality (CGE). Because of their scarce resources, chapter 9 institutions tended to agree not to duplicate work amongst themselves. For example, the SAHRC referred issues to or was referred issues by the Public Protector, the Electoral Commission of South Africa (IEC), and the CGE. GBVF was primarily being dealt with by the CGE. However, the SAHRC did intervene in gender-related issues where appropriate. For example, it was currently dealing with the Caster Semenya case in the European Court.

Mr Nqola said that, during the Committee-led appointment processes for commissioners, one major concern that had emerged was about the “accessibility and visibility” of the SAHRC. He believed that if the SAHRC was not accessible to the people, it should no longer operate as a chapter 9 institution. Moreover, for the SAHRC to be accessible, it had to be visible – people had to know that there was such a thing as the SAHRC, a national human rights watchdog. Had the SAHRC allocated a budget to advance its visibility and accessibility? He thought that doing so would assist “the core business” of the SAHRC.

Prof Majola replied that, in the assessment of commissioners, the SAHRC was quite visible. The suggestion that it was not accessible had not come to its attention. Adv Thipanyane could confirm that the number of complaints made to the SAHRC had in fact increased. The media was aware of the SAHRC and its representatives were interviewed regularly, including in languages other than English on vernacular and regional radios. Of course, there might be people who were unaware of the SAHRC, but it was doing its best to be “vocal and visible.”

Adv Gaum agreed that the SAHRC’s visibility that increased substantially in recent years. 

Adv Thipanyane said that the question was whose standards were used to judge visibility. He believed that, over the past three years, the SAHRC had been one of the most visible chapter 9 institutions, especially in terms of its media coverage. It was in the media almost every week, and it had reported to the Committee last year that its annual media coverage had been worth over R400 million. That figure might decline this year because of COVID-19, but it remained very high. However, the SAHRC did acknowledge that its reach to rural areas and other marginalised areas remained a concern.

Adv Thipanyane said that, as a result of this concern, during COVID-19, the SAHRC had arranged for monitors to visit various areas, working with Commissioner Andrew Nissen. The SAHRC was also signing memoranda of understanding with various organisations to work around what they called “community human rights defenders” – it wanted to champion people who could work with the SAHRC to advance human rights in their communities. The SAHRC had also met with the National Student Financial Aid Scheme (NSFAS) twice that year regarding access to funding for further education, and NSFAS had asked for its assistance with its mechanisms for handling complaints. The SAHRC also had a think-tank on child rights which included many organisations, such as UNICEF, the Department of Social Development (DSD), the Centre for Child Law, and the Children’s Institute. The SAHRC ran its moot court across public schools in the country. All these initiatives showed the extent of the SAHRC’s “footprint,” although, of course, it also had to keep improving. He suggested that, in its annual report, the SAHRC would show in greater depth what it had done to increase its footprint and reach. Provincial offices also engaged regularly with media, especially radio. It might be helpful to provide some information about the structure of those engagements, so that Members did not think that the SAHRC focused on the national news media alone. There were community radio stations, like Lesedi FM and Motsweding FM, which had very high penetration.

Mr Nqola was concerned that the SAHRC spoke of the fourth industrial revolution (4IR) as though 4IR was in the future. To the best of his memory, the country had already been in a “heated discussion” about 4IR when the sixth Parliament had been convened in May 2019. It was now 2021. He believed that if the operations of the SAHRC adapted to 4IR, this would help to advance its accessibility and visibility. What were the SAHRC’s plans to “move fast” in keeping up with 4IR?

Adv Gaum said that, in his view, the SAHRC had “dramatically adapted” already. In recent months, it had held virtual meetings with people all around the world. He had recently been involved in a conference with participants from all over Africa. The SAHRC also used virtual platforms to consult with its lawyers in the Caster Semenya case, some of whom were acting pro bono and were based in the United Kingdom as Oxford professors. Even the national school moot court competition would be virtual that year, with mobile data made available to learners to ensure that they could participate. Further evidence of the fact that the SAHRC had adapted was its decision to reduce its office space. He remembered that as early as the previous year, or the year before that, the SAHRC had held a conference or workshop about 4IR and its impact on human rights and on the SAHRC.

Adv Thipanyane said that the SAHRC, together with the Human Sciences Research Council (HSRC), had organised a conference in March 2020 about 4IR and its impact on human rights. Just two weeks ago it had published, again in collaboration with the HSRC, a book about how bodies like the SAHRC could respond to the challenges presented by 4IR in this area. As Adv Gaum said, the SAHRC had already adjusted the way it did its work. In April 2020, at the start of the COVID-19 pandemic, it had decided to make certain changes, such as providing all staff members with laptops and data so that they could work from home. The reduction in office space also took into account the shift towards working from home. Most of the SAHRC’s engagements now happened on digital platforms. For example, the initiatives for its 25th anniversary in October and December 2020 had mostly been digital, which had allowed them to reach more people. That year, its conference in March, on corruption and human rights, had been entirely digital. So the SAHRC was definitely moving in the right direction, and it acknowledged that 4IR was “the future.” It had a memorandum of understanding with the HSRC to look into how it could further leverage 4IR to its advantage. This would remain a central concern for the SAHRC.

However, Adv Thipanyane said that one problem with this approach was that some people would be not able to access the platforms, due to issues with internet and data. Therefore, it was necessary to “push hard” to make internet access a human right. The SAHRC had raised that issue with the government last year, in the context of education. Unequal access to internet created further inequalities between rich learners and poor learners. This was important for the SAHRC’s work monitoring schools, especially given that, as the pandemic continued, reliance on online platforms would continue to increase.

Mr Nqola said that during the COVID-19 pandemic, all arms and entities of the state had directed funds towards COVID-19-related matters. It was not in dispute that, during this period, the Disaster Management Act had effected justifiable limitations on people’s rights. That is, the limitations were justifiable in terms of section 36 of the Constitution, the limitation clause. Yet the regulations introduced by the President in March 2020 had caused tensions in the country – some people threatened to take the government to court for violating their rights. The SAHRC had not been seen ensuring that people were aware that these measures represented justifiable limitations on their rights. What had been the role of the SAHRC in relation to the effect of COVID-19 measures on human rights, from March 2020 to the present? 

Proj Majola replied that there had been debates and discussions within the SAHRC about the extent to which individual rights had been violated during the pandemic, and about the extent to which those violations were justifiable under section 36 of the Constitution. The issue was debatable. Members of the SAHRC had “seriously debated” the alcohol and cigarette bans, for example, but had reached the conclusion not to pursue the matters. However, as departments like DSD and CoGTA knew, the SAHRC had intervened and approached departments when it found that there were violations. Those interventions had resulted in many changes. He believed that the Committee’s visibility in these matters was “a matter of degree.” The SAHRC could be more visible if it had more resources.

Adv Gaum agreed that the SAHRC had continually debated whether the regulations were indeed reasonable and justifiable in terms of section 36. In some cases, the SAHRC had considered opposing some specific regulations in court, but this had been rendered unnecessary when civil society organisations did so themselves. The SAHRC had intervened specifically in the matter of schools opening and closing during the pandemic. When government had delayed the opening of schools, the SAHRC had clearly opposed this on the grounds that it was not reasonable or justifiable. In its engagements with DBE, it had emerged that, interestingly, DBE usually agreed with the SAHRC that schools should be the first to open and the last to close under lockdown regulations.

Adv G Breytenbach (DA) said that, since OPCAT had been ratified in March 2019, the SAHRC had been tasked with handling related matters, as well as with handling the NPM. The SAHRC had received R1.68 million from the Department of Justice and Constitutional Development (DoJ&CD) for this work in the last financial year. What funding was in place for 2021/22, and where would it come from? What were the plans going forward? She also asked for an update on the work of the NPM.

 

Adv Thipanyane replied that the current ring-fenced budget for the NPM was about R2.6 million. However, as mentioned in the presentation, 2021-22 was the last of the three years covered by that funding. The SAHRC was therefore engaging with Treasury and government to find funding for the future. It was also working with other bodies, including the Judicial Inspectorate for Correctional Services (JICS), the Independent Police Investigative Directorate (IPID), and the Military Obudsman, to see how the NPM should be structured. The SAHRC had both a monitoring role and a coordinating role in the NPM. The second NPM report, which the SAHRC would submit “very soon,” would show Members the kind of work that had been done so far. There would also be a conference in Cape Town June about the NPM. The SAHRC considered it successful.

Adv Breytenbach was concerned that the SAHRC might be unable to meet its obligations under the Protection of Personal Information Act (POPIA). What was the situation?

The Chairperson was also concerned that the SAHRC might not be able to meet the POPIA requirements. What emergency measures was it putting in place to mitigate against any non-compliance with POPIA?

Adv Thipanyane replied that the SAHRC had an arrangement with the Information Regulator (IR). In fact, its new offices were in the same building as the IR’s offices, so they were neighbours. They were meeting and had signed an agreement on transition. The SAHRC would work hard to ensure that it would do its best to make sure that it adhered to the requirements, despite all its challenges.

Adv Breytenbach asked what steps the SAHRC had taken to mitigate the effects of COVID-19. The presentation did not seem to provide information about that, but COVID-19 must have affected the organisation. What were the plans of the SAHRC for dealing with COVID-19 going forward?

Adv Breytenbach noted that the SAHRC had produced a very long report on pollution in the Vaal River. She thought the report “excellent.” It mentioned that Gauteng’s most vital resource had been irreparably damaged, and the Vaal River was indeed very important to Gauteng and to the country. How would the SAHRC be following up on the issue? Was it monitoring the situation?

Proj Majola replied that, as Adv Breytenbach probably knew, Minister Lindiwe Sisulu at DHSWS had immediately responded to the report and had committed to taking action. The SAHRC’s Gauteng office was following up and monitoring the situation. It might be “too soon to make a call.”  

The Chairperson asked how much the SAHRC had saved, or expected to save, as a result of its move to a smaller office. 

Adv Gaum replied that Adv Thipanyane could provide specific figures, but the magnitude of the cost savings was reflected in the presentation (see slide 32). In his view, by decreasing its office space in order to save money and adapt to the situation created by COVID-19, the SAHRC was setting an example for other organisations.

Adv Thibanyane said that the savings from the rental amounted to about R7 million. The new office was largely open plan, so people could just walk in and out. Most of the savings would be realisable only in future years, since in the current year the SAHRC had to pay for furniture and similar expenses. He thought the SAHRC should be commended for switching offices, which was not always a painless process.

The Chairperson said that the targets in the SAHRC’s APP were unacceptably broad. For example, it targeted “between 80-100% implementation” of various measures. The Committee wanted targets to meet the SMART principles, so that it could do proper oversight and monitoring. If the SAHRC set such broad targets in the future, it would be difficult for the Committee to approve its plans.

Prof Majola thanked the Chairperson for his guidance. The SAHRC acknowledged the feedback and would ensure that it revised its targets and set appropriate targets in the future.

The Chairperson said that, at its last engagement with the Committee, the SAHRC had committed to dealing with 81% of its internal audit findings. However, it had only dealt with 59%. This harmed the credibility of its plans going forward. How would it ensure that it was able to meet the targets it had set for itself?

Adv Thibanyane replied that the audit remained a concern. However, the SAHRC had a new audit committee and a new CFO. He appreciated the role played by the acting CFO, who had held the fort, and he did not want to “make an excuse.” However, for the past two years, the SAHRC had been using a level 12 official as an acting CFO, due to the problems it had with its previous CFO. The new CFO was a chartered accountant and could help the SAHRC deal with the relevant issues. He promised that the SAHRC would “do much better.” It had held meetings to make it clear to staff that it needed a clean audit, not just an unqualified audit.

To general concerns about monitoring, Adv Thibanyane said that the SAHRC was developing a monitoring system, with a plan to be rolled out “very soon.” It would be able to report to the Committee on the plan soon. The SAHRC also had the budget to employ monitors in all provinces to help it monitor human rights issues. It had identified three issues – water and sanitation, infrastructure, and violence and bullying in schools – as key issues where monitoring should be prioritised. On violence and bullying in schools, it had met with the South African Council of Educators (SACE) to see how the problem could be addressed, because it was “quite concerned.” In the area of health, SAHRC wanted to monitor the roll-out of COVID-19 vaccines. Concerns had been raised about how to extend the vaccination programme to marginalised areas of the country, and about how to improve health infrastructure to ensure that the country “survived” COVID-19. The SAHRC was aware that COVID-19 was undermining not just the economy, but also human rights. It was also highlighting the “fault-lines” in South African society, in terms of wealth inequality and challenges to service delivery. COVID-19 was, of course, a threat, but it also presented an opportunity to reflect on these issues. The SAHRC’s monitoring plan would help it to look into such issues.

Adv Thibanyane said that the SAHRC also wanted to strengthen its work around the NPM, so that it could monitor as many police stations as possible and work with other bodies too. For example, it had been asked to assist the Military Ombudsman with some of its complaints. As he had mentioned, it also worked with other chapter 9 institutions. The conference on corruption in March had been “fascinating,” because, for the first time, the SAHRC had invited all chapter 9 institutions. The Auditor-General, the Public Service Commission (PSC), the Public Protector, IPID, and the Minister of Justice were all present. The SAHRC’s focus on protecting whistleblowers would also require it to engage with many other agencies that were involved in similar work.

The Chairperson congratulated the SAHRC on the innovative steps it had taken to cut costs. It was a very difficult time – the economy was struggling, and the national fiscus was struggling. Managers, leaders, and public servants had to assist the country by ensuring that they worked with what they had. The Committee was encouraged that SAHRC officials had “forsaken some comfort” in order to find resources to implement programmes that served South Africans. He hoped that, when the SAHRC returned to the Committee, its plans would be aligned with SMART principles, as Prof Majola promised. This would allow the Committee to monitor the SAHRC better, but it would also ensure that the SAHRC had the requisite resources to meet its targets and that wasteful expenditure was minimised. It was therefore important to stick to the SMART principles.

The Chairperson provided an update on the appointment process for the two new commissioners – the deputy chairperson and another full-time commissioner. The Committee hoped that by 4 June, when the House rose, it would have made its recommendations to the House and to the President. It was working very hard to ensure that the process was finalised before the end of the term. The appointments would also help the SAHRC to meet its targets, and it would lessen the workload of commissioners and managers. He thanked the current commissioners for “holding the fort.”

The Committee adjourned for a three-minute break.

Traditional Courts Bill: legal opinion

The Chairperson welcomed Deputy Minister John Jeffery, DoJ&CD.

The Chairperson reminded Members that the Committee had heard a legal opinion on the Traditional Courts Bill in March, but connectivity problems had cut the discussion short. The discussion had therefore been deferred to the current meeting.

Ms Phumelele Ngema, Parliamentary Legal Adviser, said that her presentation would cover the three questions that Members had asked during the March meeting before she had been disconnected. That presentation had itself been a second opinion on the constitutionality of the Traditional Courts Bill. Members’ questions had been:

• What had changed since the last legal opinion in 2018, which had judged the Bill to be unconstitutional?  
• What was the meaning of the opt-out principle in the Bill?
• If the National Assembly (NA) rejected the Bill as amended by the National Council of Provinces (NCOP), what would happen if the subsequent mediation process failed?

Constitutionality

Ms Ngema said that the 2018 legal opinion had responded to the Bill as introduced by the Minister. That version of the Bill had explicitly expressed an opt-out clause for a party that did not wish to be tried in a traditional court, so that both parties had to voluntarily consent to participate in the traditional court process. The 2018 opinion had concluded that, given that the Bill was already constitutionally certified, removing the opt-out clause might render the Bill unconstitutional by restricting freedom of cultural participation.

The 2021 legal opinion, on the other hand, concerned the D-version of the Bill, which had been worked on by both the Portfolio Committee and by a select committee (NCOP). In that version, only the party that instituted the dispute had the freedom to choose whether the matter would be tried by a traditional court. The legal opinion concluded that the Bill would pass constitutional muster, with or without the explicit opt-out clause, because both Houses of Parliament had lawfully conducted the limitation of rights exercise in terms of section 36 of the Constitution.

Ms Ngema’s opinion remained that the Bill, as it stood, would pass constitutional muster. She explained her reasons for this opinion (see slides). In brief, the current version of the Bill reflected that both the NA and the NCOP had properly applied the rationality and proportionality tests under section 36, which allowed the legislature to limit rights. The Bill thus balanced appropriately between the different, and conflicting, rights that were in play: on the one hand, under section 30 read with section 31, the right to live a cultural life of one’s choice; and, on the other hand, under section 34, the right to take a dispute to a court of one’s choice.

The opt-out principle

Ms Ngema said that the concept of an opt-out principle had been introduced to South African law mostly through class actions that had arisen after the Constitution took effect. In the context of collective action, people retained the autonomy to act as individuals. That is, one could choose whether to opt in – to be a part of the collective – or to opt out – to act as an individual and not to be bound by collective decisions.

For the purposes of the Bill, legal arguments focused on sections 30 and 31 of the Constitution, providing the right to participate in the cultural life of one’s choice. The question arose whether, given this provision, people who did not want to participate in traditional courts ought to be bound to do so. In this regard, the legal opinion was guided by the fact that customary law already had recognition and lawful existence in terms of section 12 of the Constitution. In terms of section 34, a plaintiff could therefore choose to have his dispute heard by a traditional court. To allow the respondent to override that choice would be to violate the plaintiff’s section 34 right.

The mediation process

Ms Ngema said that the Traditional Courts Bill was a section 76(1) Bill. As such, if the NA did not approve the Bill with the NCOP amendments, the Bill would be sent to mediation in terms of joint rules 185-189. If mediation did not result in agreement, the matter would revert to the separate processes of each House of Parliament. The Bill would undergo the “winding” process outlined in NA rule 315. The Bill would not automatically lapse, and the NA would have final veto power. If the Houses failed to agree at the end of these processes, the Minister would decide which version of the Bill would be voted on.

Discussion

Dr Newhoudt-Druchen asked what would happen if the plaintiff wanted his case heard in a traditional court, but the respondent wanted the case heard in a mainstream court. 

Mr Nqola said that the institution of traditional leadership was “too complex.” A given matter was not isolated within one tribe, one community, one village, or one region. Because of this complexity, the Committee had to be “meticulous” in dealing with the Bill. The Bill did carry risks, including the risk of legal challenges. He proposed that the Committee should solicit the services of the senior counsel of Parliament’s legal unit. It could seek one final, conclusive legal opinion, to inform itself about the legal risks, strengths, and weaknesses of the Bill.

Mr Nqola also asked what the position of traditional leaders was regarding the opt-out clause.

Adv Breytenbach said that she had listened very carefully to the legal opinion but fundamentally disagreed with Ms Ngema. She emphasised that she had the utmost professional respect for Ms Ngema and the utmost respect for customary law. However, she could not reconcile herself to the Bill. It would affect vulnerable members of the population – those who did not have easy access to lawyers and who already struggled with access to justice in the mainstream courts. The Bill would subject millions of people, particularly women, to a system that they did not necessarily want to be a part of, that they did not necessarily think was fair, and that was deeply patriarchal. Those people would have no choice in the matter. If the principal litigator wanted to litigate in a traditional court, the second litigator would have to go through the whole process in the traditional court and then, if he was unhappy, approach a mainstream court to set the case aside. How would they get through that process? Who would advise them, and how would they pay for it? The Bill would create “untold mess,” and nothing but “unfairness and trouble.” Without an explicit opt-out clause, the Bill was unconstitutional and would entrench inequality. She could not support it or advise her party to support it in its current form.

To the proposal of Mr Nqola, Adv Breytenbach suggested that the Committee should seek a legal opinion from an outside third-party silk who was not “invested” in the matter and who could therefore provide an objective view on the Bill.

Ms N Maseko-Jele (ANC) said that those who would benefit from the Bill, and those who would “appreciate” it, were primarily from rural areas. Had the Bill, including the controversy around the opt-out provision, been presented to the traditional leaders? If so, what were their views? Some Members were relatively new to the Committee and so were not familiar with all the engagements that had taken place regarding various versions of the Bill.

To Adv Breytenbach’s concern about injustice, Deputy Minister Jeffery said that the Bill would not create traditional courts – traditional courts already existed and operated. The Bill attempted to regulate those courts to make them consistent with the Constitution. Largely, the problem was that South Africa’s history had left the country with a “dual system.” In colonial times, some land had not been governed by colonialists or Afrikaners, and instead had become the native reserves and later the bantustans, governed by traditional leaders and customary law. That dual system was “the reality” and it was recognised in chapter 12 of the Constitution.

Deputy Minister Jeffery acknowledged that the Bill as introduced, and as it had emerged from consultation with a reference group of traditional leaders and civil society leaders, had had an opt-out clause. As he had said before, the aim had not been to create a Bill that everyone supported, but rather a Bill that people “could live with.” That had been achieved – people could live with the Bill, though few people were “particularly keen on it.” Someone had sent him an article written by Richard Baber in memory of Ms Sizani Ngubane, who had attended some of the meetings of the reference group. He quoted from the article, which said that Ms Ngubane, with her Rural Women’s Movement, had mobilised against “harmful pieces of legislation… While the Traditional Khoi-San Leadership Act was passed, the Traditional Courts Bill was previously defeated – although, devastatingly, it has been revived.” This summed up the issue: some people saw it as “devastating” that the Traditional Courts Bill existed. Yet the options were to change the Constitution, abolish traditional leadership, and outlaw traditional courts – or to regulate them. Traditional courts did provide helpful dispute resolution mechanisms.

Deputy Minister Jeffery said that the Constitutional Court would decide the constitutionality of the Bill. Although Ms Ngema was “adamant” that the Bill was constitutional, his own view was more conservative. The Bill may or may not be constitutional, though DoJ&CD hoped that it was. The Constitutional Court had overruled even the Supreme Court of Appeal on certain issues. Moreover, Parliament had already judged the Bill constitutional twice – when it was passed by the NA in the last term, and when it was passed by the NCOP in the current term. Even if the Bill was not constitutional, and even if the NA did have concerns about its constitutionality, was there anything that the NA could do about it at this stage? The NA could only look at the NCOP amendments, which were “not particularly substantial” – for example, the amendments changed references to certain legislation, fixed some typos, and changed the name of the Bill from 2019 to 2020. He was concerned that seeking further legal opinions would not be productive – some opinions might say it was constitutional and others might disagree, but the ultimate decision would remain with the Constitutional Court. It seemed as though it was now for the President to refer the Bill back to Parliament if there were concerns that it was unconstitutional.

Deputy Minister Jeffery said that there was one particular civil society organisation that was spearheading opposition to the Bill in the media. That organisation should come out and say frankly whether or not it supported traditional leadership. In any case, that organisation had had “the cheek” to claim that the Bill was being rushed, which was not true. The Bill had been around for a long time, and had been debated at length. Although someone from the Land and Accountability Research Centre (LARC) had claimed that he had said otherwise, not all members of the reference group were happy with the current version of the Bill – they wanted the opt-out clause, as had been included in the original Bill. However, in taking that clause out, the previous Committee had also changed other provisions to allow for appeals to the magistrates’ courts, so it was not just a question of removing and replacing the opt-out clause in isolation. The Bill was admittedly controversial. It had been under debate for 20 years, and it could be debated for 20 more years. But in that time, and until the Bill was finalised, traditional courts would continue to operate unregulated. He thought it was better for the courts to be regulated. In the first meeting that he and the previous Minister had had with civil society and traditional leadership, civil society activists – including Ms Aninka Claassens from LARC, which had been “very active” on this issue – had said that the Bill was urgently needed. Unfortunately, DoJ&CD had discovered later that, though parties had expressed support for the Bill, there had been attempts to undermine the process of drafting it.     

Deputy Minister Jeffery noted that, in the March meeting, Adv Breytenbach had raised concerns about gender. He said that in the reference group, which had included prominent feminists, there had been no disagreement about the clauses relating to the participation of women. In addition, when the first version of the Bill had been passed in the NA, the Minister at CoGTA at the time, Dr Zweli Mkhize, had consulted with traditional leaders – he thought with the National House of Traditional Leaders (NHTL). Those leaders had accepted the B-version of the Bill, which substantially resembled the Bill in the current form, apart from the NCOP amendments.

Adv Breytenbach clarified that she had not suggested that the traditional courts system was unjust. She did not believe that.

Deputy Minister Jeffery replied that he had not intended to convey that she thought that the system was unjust. She had raised concerns about potential injustices, and he was responding to those concerns.

To Members’ questions about the input of traditional leadership, Ms Ngema said that the Bill was a section 76 bill and related to issues of customary law and customs. Therefore, when it was before the NA, it had been referred to traditional leadership in terms of section 18 of the Traditional Leadership and Governance Framework Act. The NHTL had provided input, which had formed part of the presentations on the Bill. The parliamentary secretariat could provide NHTL’s written submission on the Bill.

To Dr Newhoudt-Druchen’s question, Ms Ngema said that, according to the Bill, the traditional courts process had to be seen through to the end, even if the respondent did not want the matter to be heard by a traditional court. However, a provision had been added which said that the case would go to review if a party was unhappy with the process.

Ms Theresa Ross, Principle State Law Adviser, DoJ&CD, added that, if a party refused to appear before a traditional court, the clerk of the traditional court would make a determination to that effect. The clerk would then refer the party to the justice of the peace, who would negotiate or mediate with the recalcitrant party. The justice of the peace would perform his functions in line with the Justices of the Peace and Commissioners of Oaths Act.

Deputy Minister Jeffery confirmed that, as Ms Ross said, if a party failed to appear, the matter would be referred to the justice of the peace, who would try to speak to that party. Furthermore, under section 4(b)(ii) of the Bill, if the non-compliant party was the party against whom the summons had been issued, the justice of the peace could request the traditional court to have the matter transferred to the magistrate’s court having jurisdiction. This spoke to Adv Breytenbach’s concern. He thought that currently, in many instances – although it varied between courts – people were “forced” to participate in traditional courts processes. The provisions of the Bill, on the other hand, would not force people to participate. The Bill was informed throughout by the broad principles of the voluntary nature of customary law. There was no provision that a party had to attend the traditional court, nor that there were penalties for failing to attend. Instead, the Bill provided that, if a party did fail to appear, the matter could be referred to the magistrate’s court. 

The Chairperson thanked Ms Ngema for her presentation. He said that, regardless of whether the Bill was ultimately found constitutional by the Constitutional Court, what was important was that the National Assembly did not pass the Bill until it was convinced “beyond a doubt” that it was constitutional. Members had to take every step to ensure that they were convinced of the Bill’s constitutionality. The President was not a Member of Parliament. Members should not refer a Bill to the President for assent unless they were certain about it. They had to be satisfied that they had done their work diligently and believed in the product that the President received.

The Chairperson said that there was still uncertainty among Members about the Bill’s constitutionality. Therefore, the Committee would seek the opinion of outside senior counsel, who would either corroborate Ms Ngema’s view or suggest a new perspective. Members’ doubts were not a reflection of Ms Ngema’s work, which was diligent. It was not a matter of being right or wrong – as the Deputy Minister said, even courts frequently disagreed with each other. 

Adv Breytenbach agreed.

Committee Agenda

The Chairperson noted that the Committee still had to deal with various reports and minutes before the end of the meeting. It had to vote on the budgets of the Department of Correctional Services and of the Office of the Chief Justice. For example, in terms of the parliamentary programme, the budget vote for the Chief Justice would be debated on Tuesday, so the Committee’s report had to be approved before the end of the meeting. It would vote on the budget of DoJ&CD next week, because the SAHRC briefing had to be included in that report. He proposed that the Committee would begin by considering the content of the reports. In the meantime, party leaders should ensure that Members from their party joined the meeting so that the Committee would have a quorum to vote.

Ms Maseko-Jele and Adv Breytenbach agreed.

Deputy Minister Jeffery offered to answer any further questions relating to the draft reports about the salaries of judges and chapter 9 officials, but said it would obviously be inappropriate for him to have input into the Committee’s reports.

The Chairperson excused the Deputy Minister from the meeting.

Dr Newhoudt-Druchen asked whether the Committee had a quorum to vote.

The Chairperson repeated that the Committee would deal with the content of the reports while waiting for more Members to join the meeting.

The Committee adjourned for a five-minute break.

Consideration and adoption of draft Committee reports

Adv Breytenbach indicated that Mr W Horn (DA) had joined the meeting.

The Chairperson thanked Adv Breytenbach and Mr Horn. The Committee now had a quorum.

The Committee considered its draft report on Budget Vote 22: Correctional Services; its draft report on the APP for 2021/22 of the Office of the Chief Justice and Vote 27: Office of the Chief Justice; its draft report on the draft notice determining the rate, with effect from 1 April 2020, at which the remuneration of Constitutional Court judges and judges; its draft report on the draft notice determining the rate, with effect from 1 April, at which salaries and allowances are payable to magistrates annually; its draft report on the notices determining the remuneration of the Public Protector, Deputy Public Protector and Commissioners of the SAHRC with effect from 1 April 2020; its draft report on the draft regulations submitted in terms of section 92(2) of the Promotion of Access to Information Act; and its draft report on draft regulations made in terms of section 23(1) of the Legal Aid South Africa Act, tabled in terms of section 23(2) of the Act.

Members suggested minor corrections to spelling, grammar, and phrasing.

The DA reserved its position on all reports except the last.

All six reports were adopted.  

Consideration and adoption of Committee minutes

The Committee considered and adopted draft minutes dated 5 May 2021, 6 May 2021, 7 May 2021, 11 May 2021, and 12 May 2021.

Closing remarks by the Chairperson

The Chairperson thanked Members for their cooperation, commitment, and patriotism. He also thanked the Committee staff, who had been working very hard, for their professionalism and diligence. It was a difficult period for the staff, given the many reports and the large portfolio of the Committee. They had done extremely well and were the backbone of the Committee and its work. 

Adv Breytenbach agreed that Committee staff consistently produced outstanding work. She was extremely grateful to them.

The Chairperson said that the Committee would meet again on Tuesday. He encouraged members to take the weekend to relax, because the next two weeks were going to be “extremely hectic” for the Committee.

The meeting was adjourned.