South African Human Rights Commission 2022/23 Annual Performance Plan

Meeting report

Prof Bongani Majola, Chairperson: SAHRC, greeted all on the platform. Given that the SA Human Rights Commission (SAHRC) only had 30 minutes to make its presentation, he asked for the Chairperson’s permission not to make any opening remarks.

The Chairperson agreed and indicated that the Commission may proceed directly to its presentation content.

SAHRC Annual Performance Report 2022/23

Mr Siyasanga Giyose, Head: Strategic Support and Governance, SAHRC, presented the Commission's strategic plan 2020-2025 and annual performance plan (APP) 2022/23.

The priority areas that the Commission focused on included pro-human rights budgeting, good governance, anti-corruption, healthcare, land, food security, etc. In addition, it would also give attention to the challenges of inequality, children, gender, disability, older persons, migrants and the role of business in human rights.

The Commission’s APP consisted of four broad programmes -- administration, promotion of human rights, protection of human rights and monitoring of human rights.

(See details in the presentation slides.)

Ms Lori Lynn, Acting Chief Financial Officer (CFO), presented the Commission’s budget overview for the 2022/23 financial year.

The Commission had received a R208 million allocation from National Treasury in 2022/23 which, together with its interest income of R1 million and surplus rollover of R11 million, made up the R221 million total budget for the 2022/23 financial year.

(See the attached presentation for the detailed allocation)

Prof Majola gave reasons for the decline in the Commission’s audit outcome. After receiving its audit opinion, it had had extensive meetings with the Auditor-General’s (AG's) office. The outcome from those meetings was that the decline was not so much on the financial side, but rather on the compliance side. The AG had pointed out that:

• There was a need for a greater role to be played by the executive authority, as required by the Public Finance Management Act (PFMA);
• There had to be greater accountability for senior managers at the Commission; and
• There were consequence management issues.

After the engagement with the AG’s office, the Commission had also held meetings with its internal audit committee and agreed that they should have a much closer relationship going onward.

The Commission had taken a resolution to closely monitor its supply chain unit.

Prof Majola was confident that a better audit outcome for this year would happen after all these intervention measures had been implemented.  

Discussion

Adv G Breytenbach (DA) enquired why the position of CFO still had not been filled at the SAHRC, and sought to confirm whether it had undertaken the recruitment process for that position.

She noted that the term of the chief executive officer (CEO) was also about to end, and asked for an indication of the recruitment process for the CEO position.

Had the Commission met with its own internal audit committee to discuss and figure out how to deal with the concerns raised by the AG? Were any actions undertaken to improve its accuracy in reporting and record keeping?

Mr W Horn (DA) highlighted the vital role that the SAHRC could play in ensuring South Africans’ constitutional obligations were met. One of such constitutional obligations was people’s access to clean water and food. He noted that this aspect had been missing in the Commission’s APP and urged it to use its role and mandate to push the government to achieve such goals.

Commenting on the countrywide water crisis issue, he observed that in many of those instances local government had failed dismally. He noted that the SAHRC had held hearings in Mpumalanga on the issue, and asked whether the public hearing had been a kick-start to enable the Commission to generate a systemic water crisis report that reflected the situation in the country.

Mr Horn also urged the SAHRC to indicate how much of the available resources government had at its disposal were being utilised to provide quality water to the South African people.

Ms W Newhoudt-Druchen (ANC), speaking through a sign language interpreter, also enquired about the position of the CFO and asked the Commission to give an indication of how far it was before the appointment of a permanent CFO could be made.

She noted that the SAHRC had held public hearings on the July unrest issue in KZN, and wanted to know the outcome of the hearings, as well as the causes that had led to the unrest.

Had the Commission’s process on the digitisation of books been started, or was it yet to be done?

She had noted in the report the establishment of a moot court in October 2022, and asked whether the court would be held in person, or in virtual court.

There had been a decrease in the number of complaints that had been finalised, which had amounted to only 3 000 in this financial year. She wanted to know why there had been such a decrease from the normal 7 000 in previous years.

Ms Newhoudt-Druchen was concerned with the functionality of the equality, or equity, court. She asked the Commission whether it was partnering with the Department of Justice (DoJ) to review the functionality of the equality court.

She enquired about the implementation of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). She asked if the SAHRC was closely monitoring the implementation of progress and whether it had sufficient funds for the implementation in the 2022/23 financial year.

She expressed her worry that with government’s fiscal constraints and overall spending cuts, government departments were now engaging in unethical labour practices to get rid of their deaf employees, and employees with disabilities. She had always taken pride in the developmental state which gave people with disabilities an equal opportunity to work. She therefore wanted to know how the Commission was monitoring the situation in governmental departments.

The Chairperson concurred with Ms Newhoudt-Druchen’s concern, and indicated that the Committee should formally verify with the Commission whether such unethical labour practices were happening in government.

Mr S Swart (ACDP) appreciated the Commission’s effort in investigating the July unrest and unravelling the root causes. He requested it to provide the Committee with an update on the misappropriation of funds which the SAHRC had noted in KZN flood-related activities.

He enquired about the Commission’s involvement in providing protection for whistleblowers.

He referred to the removal of some performance indicators and the decrease in the number of complaints, pointing out that there was significant decrease in the number of complaints that the Commission planned to process. The figure had dropped from 7 000 two years ago to 5 000 last year, and now it had been reduced to 3 000. Although Members were cognisant of the budget constraints, he believed that this was a huge decrease against the context of an increasing number of human rights breaches in the country.

Mr Swart highlighted s184(3) of the Constitution, according to which government departments were obligated to report to the SAHRC on the realisation of rights in terms of the Bill of Rights. This covered a wide range of important issues such as water, environment, education, housing, social security etc. In his observation, there were nine reports from 1997, but there had been no overarching report from 2013 onwards. He suspected that government departments were just not complying with that requirement, and asked the Commission to indicate what the Committee could do to assist.

He raised the issue of food security, which a lot of people in the country faced daily. It was estimated that there were currently six million people who were under-resourced and were starving in South Africa. 199 children had died of malnutrition in the first of two months in 2022. Had the Commission looked into this issue, given that the country was a net exporter of food?

Mr Swart noted that the SAHRC Office in Gauteng was assisting those employees who had lost their jobs because of discrimination against those who were not vaccinated. He requested the Commission to provide him with an update, since government had not implemented a mandatory vaccination policy.

He commented on the regulations in the Health Act that had been implemented from 4 May 2022. He said that there was widespread concern that some specific COVID-19 related regulations were being promulgated into the Health Act regulations which placed restrictions on people’s constitutional rights. Was the Commission aware of this?

The Chairperson also raised the same concern regarding the Commission’s reduced target on the number of complaints that it planned to process. He called its continuous reduction of targets disturbing, as the target on the number of processed complaints had dropped almost 100 percent within the last three years. He demanded the Commission to give an explanation on that.

He commented that nearly half of the performance targets were illustrated in percentages, and requested that those percentages be translated into actual figures.

The Chairperson sought more clarity on the target of the functionality of the equality court. He noted that this target had been in the Commission’s APP for the 2021/22 financial year, without much detail on the effectiveness of the court. The target was in its APP in the 2022/23 financial year but still no further information on how the SAHRC planned to monitor the functionality of the court. He wanted the Commission to explain the Commission’s lack of clarity on this target.

He noted the 80 percent target for the Commission’s information communication technology (ICT) plan in 2022/23. However, he pointed out a contradiction in the Commission’s assessment of its own ICT system, as it had stated that its strength was a stable information and technology environment, but in the same breath had also stated that its weakness was its outdated and ineffective ICT system. He wanted the Commission to provide an explanation for the contradiction and asked the Commission to give a breakdown of the deliverable elements that could assist the Commission to achieve the 80 percent target.

He sought clarity on the deliverable targets for the Commission’s organisational culture renewal plan, and wanted more information on its automated performance planning and reporting plan.

The Chairperson expressed his concern at the reduction in the number of strategic impacted litigation cases, from 15 in the 2021/22 financial year to three in the 2022/23 financial year, and asked what had caused this reduction.

He also wanted to know what the Commission aimed to achieve by entering into memorandums of understanding (MoUs) with universities.

SAHRC's response

Adv Tseliso Thipanyane, CEO, SAHRC, said that the former CFO of the Commission had resigned in 2021 due to the death of her husband. Following the Commission’s engagement with the Portfolio Committee, it had then decided to appoint an acting CFO temporarily in order to address some of its audit challenges immediately. That acting CFO had previously been in the employ of the AG’s Office.

The Commission had advertised the CFO position and conducted interviews. Candidates had been asked to undertake competency tests this week and in the following weeks. After that, recommendations would be made for the Commissioners to make the final appointment.

He added that the Commission had appointed someone with the expertise in supply chain to resolve the supply chain issue which the Commission had faced for some time. It currently had two chartered accountants to deal with audit-related issues.

Mr Zolile Moyo [surname unconfirmed], Chief Audit Executive, SAHRC, said the Commission used "One Drive" cloud technology, which enabled all employees to share the evidence and performance information. By using cloud technology, employees were able to get feedback much faster, even if they worked remotely. However, the Commission had been able to do that only for quarters one and two of the year and could not do this for the rest of the year because of its capacity constraints. He assured the Committee that there had been great improvements made on record-keeping.

He admitted that the Commission’s supply chain system could not keep all the necessary evidence, which was a weakness. Actions had been taken to strengthen the system, which hopefully would be completed by early this year.

Mr Giyose said the Commission had sourced a temporary support member, who was a former official, to report performance information on a daily basis. The support member reviewed evidence and reported back to the Commission to identify the areas of challenges that it faces. The Commission was currently assessing its performance information for quarters one to three of its annual report.

He acknowledged that the Commission still faced challenges emanating from the time when those issues had been raised. The Commission’s APP had been finalised before those challenges were raised, but would be addressed in its current APP.

Ms Philile Ntuli, SAHRC Commissioner, acknowledged the importance of closely monitoring government performance in protecting human rights, as well as the Commission’s specific role in monitoring the progress. It also noted the introduction of the government-wide monitoring and evaluation system. In addition, the Premiers’ offices, as well as the Department of Planning, Monitoring and Evaluation (DPME), had all provided some form of guidance to assist the Commission to understand how to execute the monitoring function. The SAHRC was mandated by s184(1)(c) and s184(3) of the Constitution to monitor and assess human rights situations across different spheres of government. The Commission had also established some form of working relations with provincial offices to conduct this monitoring process.

Adv Andre Gaum, SAHRC Commissioner, said the Commission was making steady progress in getting witnesses to testify before Commission Panel. He commended the cooperative spirit of government ministers in being part of the witnesses, and highlighted the President’s presence at one of the hearings. There were currently still a few outstanding witnesses that the Committee would have to engage virtually. The Commission had also released an employee from normal duties to be dedicated to report writing. The draft report would be ready by June for the Commission’s finalisation.

Adv Gaum said that the Commission still needed to decide whether the Moot court would be held in person or virtually. He was satisfied with the outcome of the virtual competition from last year, as more learners were showing up and participating. He described the moot court as the Commission’s flagship project, which it aimed to expand.

Ms Fatima Chohan, Deputy Chairperson, SAHRC, said the Commission’s decision to finally reduce the number of complaints that it would process had been a conflicted one, as it had had to consider and weigh the impact versus the volume. Since the Commission also had its own capacity constraints, it was of the firm view that a shift in priority to focus on high-profile human rights breaches would point it in the right direction. It was shifting towards adopting a more qualitative-based engagement, taking a more proactive approach. It was of the view that its prior stance, which had taken on a lot of less impactful, individual-based cases, would not make a huge impact on challenging institutionalised human rights breaches.  

Referring to the Msunduzi landfill issue, she said the Commission fully understood that the oversight authority should lie with the legislature, and the SAHRC's job was to monitor and litigate when necessary. She described the event at Msunduzi as an environmental disaster. The Commission’s view was that the landfill in that area had become unmanageable in size, and there were chemicals that should never have been dumped there. The outcome was air pollution affecting the health of residents in the immediate vicinity. In response to that, the SAHRC had approached courts and obtained a structural interdict which required the local municipality to develop a rehabilitation plan.

From an overall perspective, Ms Chohan called waste management in the country a growing crisis. The national government’s policy was that the prevention of waste should be the first option, then followed by a reduction of waste. Landfills should be seen as the last resort. However, the Commission’s observation was that most municipalities used landfills as the first resort, which was not only in contravention with the approved policy of Parliament, but was also extremely environmentally damaging. She highlighted that there was a huge gap between waste management policy and its implementation.

Ms Chohan confirmed that the Commission was in the process of monitoring the functionality of the equality court. She agreed that this issue had become more important in the post-lockdown era, when courts had a tendency to prioritise cases other than equality cases. In the executives’ oversight visits, they had noticed that some available courts, such as magistrates, were not being utilised. However, given that the equality court was an informal court which was accessible to ordinary people, she believed that more work had to be done in communities to raise awareness of the equality court among ordinary people.

She stressed that food security was not only a great concern for the Commission, but a great concern for everyone in the country. Joblessness, food inflation, as well as various other factors, all led people to food insecurity. She clarified that it was Stats SA, and not the SAHRC, that directly monitored food security. In fact, Stats SA had developed questions around food security in its census. She was confident that more empirical data would become available once the census was released. What the Commission did indirectly which related to food insecurity was that it monitored those vulnerable children who were in places of safety and orphanages. It was forming a social solidarity campaign to help address the food insecurity issue.

Ms Chohan emphasised that the Commission’s belief was that addressing food insecurity required a multi-pronged approach. It would need many stakeholders to work together to provide assistance such as controlling food prices, government subsidies on food items, access to food banks, households producing their own food with the support of the state, etc.

Adv Bokankatla Malatji, SAHRC Commissioner, said the Commission had embarked upon a training process for civil society members to understand the Convention on the Rights of Persons with Disabilities (CRPD). It had elected members of civil organisations to form part of the monitoring mechanism with the Commission to monitor the implementation of the CRPD, and was currently waiting for the necessary funding for its implementation.

The Chairperson requested the Commission to respond to the Committee in writing on the allegation that some deaf employees were being replaced in some government departments.

Mr Giyose explained and justified the Commission’s contradictory statement on its ICT capacity. He said that the strength had referred to the progress the Commission had made since the beginning of the hard lockdown, where work arrangements had to be shifted to the remote work mode. The reference to weakness had been made in the context that it may not be kept abreast of the latest development in the technology world, perhaps not harnessing the available opportunities that technology offered.

Mr Lucky Zulu, SAHRC Commissioner, said the Commission had engaged with some external services to give expert opinions on its organisational culture three years ago. The main opinions were around the issues at stake, and what the Commission could do to make the institution a better workplace for its employees. That engagement had led to a series of recommendations which include specific activities that it was committed to doing on an annual basis, so the annual organisational culture renewal plan included recommendations such as employee engagement survey and employees’ satisfaction level at workplace, arising from that engagement three years ago

He explained that the Commission’s human capital management plan included its normal human resources (HR) activities, as well as other emerging HR issues. For instance, the emerging issue for this year was that the Commission was re-evaluating all the jobs in the institution.

Adv Gaum said that the MoUs that the Commission had entered into with universities were just agreements between two institutions. Public institutions such as universities had a duty to serve communities. From the Commission’s side, it also had to establish strategic partnerships to boost its capacity. It was therefore considering forming partnerships with the faculties of law in those universities to get their legal support, including student interns and advisors, as well as their participation in hearings and giving legal advice. The Commission could also get various forms of support from other faculties, such as water, health, engineering, education, system improvement research, etc. For instance, if a school collapsed, having such partnerships with universities could get the Commission the engineering expertise it itself did not have. In return, it also provided online human rights modules for those university students.

Prof Majola responded to the question as to why the number of impact litigation cases had dropped to three. It was an issue that the Commission itself had also discussed extensively. He reiterated the deputy chairperson’s view that the Commission could take on more cases with less significance which would not result in more impactful changes systemically in future. However, it believed that it should strategically select its cases and choose those cases that could make the most meaningful impact by challenging the existing institutions, such as the case at Msunduzi, where a ruling could be replicated in other municipalities as well. He used the example of the Treatment Action Campaign in Europe, which had changed the whole thinking around the issue on the Continent. He believed such an approach that had been in practice in Europe should be learnt and adopted by the SAHRC when selecting cases.

He confirmed that the SAHRC would be looking at certain provisions in the Health Act regulations. The Commission was in the process of reviewing them and would make a submission to the Committee in due course.

He said the Commission took on cases related to vaccination disputes at workplaces in the same procedure as it handled other complaints. S13 of the South African Human Rights Commission Act provides that the Commission could initiate an investigation on its own. So far it was not aware of any cases related to employees being dismissed because of their refusal to be vaccinated. The Commission would assist if such cases were brought to its attention.

Prof Majola responded to the question on the s184(3) report, and clarified that s184 was not a specific requirement that asked the Commission to submit a report on government departments’ performances on human rights. He also observed that s184(3) was difficult for the Commission to monitor and implement, as it did not receive satisfactory responses from various national and provincial governments.

Commenting on Members’ questions on the equality courts, he reminded the Committee that Chapter 7 s32 of the Promotion of Equality and Prevention of Unfair Discrimination Act created a mechanism in which the DoJ was required to establish a committee to monitor how the Act operated. Although the Commission had persistently pressured the Department to establish this committee, it had not been established yet. One of the key functions of the committee would be to provide regular reports to the Minister of Justice on the operation of the Act.

Prof Majola confirmed that the recruitment process for the CEO position was underway, and the Commission was looking forward to the new replacement.

Adv Thipanyane said the Commission had spent about R4 million last year on the protection of whistleblowers. It also had taken two cases to court, as well as approached National Treasury for more funds to be allocated for the protection of whistleblowers. He added that the Commission had held two summits at which they had included whistleblowers themselves, as well as a list of bodies under the Protected Disclosure Act. The purpose of those two summits was to address the various challenges that whistleblowers were facing.

When it came to the protection of whistleblowers, Adv Thipanyane highlighted the weaknesses in the legal framework which were detrimental. To address those weaknesses, the Commission had written to the Director-General of the DoJ, as well as submitted a report to the Commissioners highlighting those gaps. The Commission hoped that the actions it had taken would lead to a better framework for the protection of whistleblowers.

He said National Treasury had recently allocated R 1 million to the SAHRC to assist its effort in establishing an independent mechanism for the implementation of the Convention on the Rights of Persons with Disabilities (CRPD).

The Chairperson remarked that the Committee would meet with the Commission again in October so that the Committee could evaluate the progress on the issues which Members had raised.

He highlighted the issue of strategic impact litigation, and said that the SAHRC was not the only organisation that was doing such work -- the South African Legal Aid Board was also doing it. He suggested that it might be worth reviewing the methods of coordination to generate greater impact, as well as the use of pro bono attorneys.

He was aware that the Minister, together with the Legal Practice Council, was finalising regulations on community work for attorneys and candidate attorneys. He encouraged the Commission to make its inputs. He asked Prof Majola to comment on that.

Prof Majola explained the conundrum that the Commission often faced to procure the services of pro bono attorneys. On Treasury’s side, it had set out stringent requirements for the procurement of pro bono legal services. The Commission’s predicament was that many willing attorneys who offered pro bono services may lose interest after hearing about having to go through the whole supply chain process. They were willing to render assistance, but very few were willing to go through this bureaucratic process. The Commission was appealing to Treasury to give exemptions on such services because the normal period of the supply chain process took about four months.

The Chairperson encouraged the Commission’s approach in giving opportunities to the training of legal attorneys. He noted that because of the limitation that had been placed on the number of people on the bar at a particular time, many who were interested in public law were not getting the opportunity. He suggested to the Commission that it may look to those people for legal advice in future.

The meeting was adjourned.