South African Human Rights Commission Annual Report 2021/22

Meeting report

The Acting Chairperson welcomed everyone and officially opened the meeting. Apologies were acknowledged.

South African Human Rights Commission Annual Report 2021/22

Ms Fatima Chohan, Deputy Chairperson of the SAHRC, provided some introductory comments. She noted that she was meeting with stakeholders in the Eastern Cape to secure partnerships with the legal clinics of the universities to assist the litigation capacity of the SAHRC. She spoke about the July 2021 unrest, which was a focus of the financial year under review as the Commission grappled with the unrest, its impact and its implications for human rights, especially in the affected communities. The Commission responded to the unrest in several ways most prominent of which was monitoring and receiving reports from the Commission’s staff during and immediately after the unrest, basic access to fuel, food and healthcare. The glaring human rights violations that occurred during the unrest and its aftermath, required a response of great human capacity and financial resources. 300 people perished during this unprecedented time. The Commission embarked on a two-pronged approach: first, implement an investigation into the causes of the unrest.

The Commission was cognisant that preexisting conditions on the ground prior to the unrest, lent itself to such volatility. The Commission is further cognisant that the same state of racial disharmony and inequality found in class and racial divisions are prevalent in many parts of the country. The Commission resolved that something more than what was done in the past was needed to address the lack of social solidarity and harmony in SA. The Commission then embarked on consultations with various stakeholders over more than six months since January 2022. The engagements informed the social harmony national effort to be rolled out in 2023.

Ms Chohan said during the year under review, covid19 brought some challenges to the Commission especially to the health and staff of some Commissioners requiring a change of strategy to address personal interaction with stakeholders and the public. This pushed the Commission to engage more closely with the media and social media platforms to bring about more exposure to the Commission’s work, reach, effectiveness and capacity.

The SAHRC received another unqualified audit although with findings on non-financial performance information. While discipline relating to work in the field needs to be entrenched in standard operating practices, there is some consolation that work continues and people are reached. The Commission takes the audit findings to heart and will finalise the appointment of a new CEO over the next few months. The fact that an unqualified audit was attained in a year of seemingly unending crises is a testament to the hard work and dedication of the Commission’s staff. She made special mention of the staff in the SAHRC office in KZN, personally affected by covid19, the unrest and the recent floods.

She assured the Committee of the Commission’s continued and unwavering commitment to a Commission that is resilient and impactful in its mandate of promoting a culture of human rights in SA.

Ms Chantal Kisoon, Acting CEO, and Ms Lorinda Lynn, Acting CFO, took the Committee through the annual report briefing.

The key findings of the Auditor-General of South Africa (AGSA) audit on performance indicated that:

• The source of information, evidence, and method of calculation for measuring the planned indicator was not clearly defined.
• Systems and processes were not adequate to enable consistent measurement and reliable reporting of performance against the predetermined indicator definitions.
• Supporting evidence for reported events did not agree with the reported achievement.
• The AGSA was unable to obtain sufficient appropriate audit evidence to support the reasons for some of the variances between the planned target and the achievement reported.

The audit corrective action on performance included the digitisation and automation of systems, the revision of performance indicators to meet SMART criteria, convening internal quarterly performance information workshops with all staff, and establishing a cross-function task team to assess advice and act on the resolution of audit findings.

The SAHRC received an unqualified audit for the year; however, material misstatements identified on payables and commitments, material findings on performance management and non-compliance with legislation, particularly in supply chain management, were identified.

The audit ‘correct action on financial information’ included the contract post of Head of Corporate Services who was appointed and joined in August 2022, a new search has been initiated to replace the permanent position of the Chief Financial Officer (CFO). Monthly tracker documents have been devised based on audit findings which are updated monthly with updates reported through the ACEO monthly.

For the 2021/2022 financial performance regarding the audited financial statements, the statement of the financial position presented a total net asset at R61.8 million for the year 2020/2021. The statement of financial performance presented a surplus for the year to be R100 000 for the year 2020/2021. The main increase in spending for the year under review was employee-related costs of R140.1 million and general expenses of R44.1 million.

Achievement of targets 2020/2021

A total of 44 targets were set and 27 of them were fully achieved (61%).

• Programme 1: Administration had a total of 13 targets and four targets were fully achieved.
• Programme 2: The promotion of human rights had a total of15 targets and ten were achieved.
• Programme 3: The protection of human rights had a total of 8 targets and five were achieved.
• Programme 4: Monitoring of human rights had a total of 8 targets and seven were achieved.

Discussion

Mr J Engelbrecht (DA) thanked the SAHRC for the presentation. He said that in as much as it was commendable that the Commission received an unqualified audit report, the functions of the Committee went further than looking at financial compliance and performance should also be assessed. There has been a regression in the Commission's ability to achieve its annual targets and this was concerning as the budget spent does not match the outcomes achieved. Mr Engelbrecht added that the SAHRC should ensure that it fulfilled its constitutional mandate as an important institution centred on protecting human rights and thus should not be found wanting.

Mr Engelbrecht wanted to know what steps the Commission was to take to change the state of affairs of the SAHRC.

Mr W Horn (DA) wanted to know about the progress that has been made about the Commission on the move to the new head office, a seemingly unilateral decision by the then CEO.

Mr Horn expressed his doubt about the ultimate impact of the Commission's report on the July 2021 unrest if it was released on the second anniversary of the unrest. Therefore, he sought clarity on whether the recommendations in the report would be rigorous and thorough, not just merely citing findings that there were failures on the part of government to deal with social inequalities. He recommended that the Commission look into this to advise government, NGOs and other actors with a focus on deteriorating standards of living and the risk of future unrest.

Mr S Swart (ACDP) thanked the Commission for the hard work during a hard time. He highlighted that one of the reasons for the Commission’s steady decline is because of capacity constraints and wanted to know what has been done to address this issue.

He expressed concern about the time lag before the final report on the July 2021 unrest was to be published. Therefore, to what degree will the findings of the expert be taken into consideration?

Mr Swart asked further what was anticipated in unpacking the Zondo Commission’s recommendations from the Commission’s perspective, particularly the billions of Rands that could have been used to alleviate poverty in the country.

On previous reports on water and sanitation, Mr Swart asked if it is anticipated that there will be further inquiries concerning water supply disruptions in some parts of Gauteng; and if the Commission intends to have a broader inquiry into service delivery deficiencies at a municipal level.

Regarding the judgement in the Mbombela court ruling where the Commission sought a declaratory order as to whether its directives were legally binding or not, the court stated that the Commission’s directives were not legally binding and, in each case, the Commission needed to approach the High Court for an order for its directives to be legally enforceable. Therefore, Mr Swart asked if the Commission intended to appeal the decision. If not, what would be the implications given the budgetary constraints faced by the Commission including non-compliance by many state departments?  

Ms W Newhoudt-Druchen (ANC) thanked the Commission for their presentation. She asked if the judgement by the court will hamper the continuing of the work of the Commission and what the plan is regarding the order in the Mbombela court ruling.

She also expressed concern about the SAHRC regression, especially concerning the AG’s findings. She thus asked if there was a plan to address the high vacancy rates and what the Commission’s plan was to ensure increased performance.

What is the Commission doing specifically on working together to enhance the protection of whistleblowers? This is mainly because different entities mentioned what they did to protect whistleblowers in their sole capacities but was there not an opportunity to work together with a different agency to strengthen the whistleblowing function?

She wanted clarity about how far the work of the Commission with the Equality Court is, whether the Commission is satisfied with the work and functionality of the Equality Court and what more could be done to enhance access.

She asked what steps will be taken by the Commission to resolve irregular expenditure and prevent such in the future.

Ms Newhoudt-Druchen asked further for the Commission to explain what the SHINE initiative was all about.

Adv G Breytenbach (DA) expressed concern and disappointment that the important Chapter Nine Institution of the Constitution of the Republic of South Africa which was mandated towards the protection of human rights continued to regress. She added that this was compromising the Commission’s integrity.

On the July 2021 unrest, Adv Breytenbach added that the SAHRC does not have the investigative capacity. Therefore, it would be concerning to learn that the Commission has been working on this on its own, as it would be expected that this should be collaborative work with relevant entities who have investigative capacity.

Ms Y Yako (EFF) added that there had been a pattern with the last meetings regarding the budget reports. She said there seemed to be a deliberate act by the Commission to present to the Committee at a high level with many technicalities to misguide the Committee in fully understanding the issues affecting the Commission. She added that such acts hinder the Committee from intervening in helping the Commission and therefore encouraged the Commission to deliver clearer presentations without technicalities.

The Chairperson added that the report on the July 2021 unrest should not limit the main reasons for the unrest solely to inequality. He encouraged the report to be rigorous about the real reasons and complexities behind the unrest.

He said that the SAHRC is a very important institution that is supposed to protect human rights. However, it is found wanting. He said that for other scrutiny bodies like the AG not to even give the Commission a credible report about its performance is worrying. He encouraged the Commissioners to make an analysis and discussion to diagnose the problem including making efforts to enhance the Commission’s performance. And if the Commission has identified that there is something in the architecture of the entity that needs to be attended to, such should be brought to the Portfolio Committee for further engagement.

Responses

Ms Chohan the Commission is not pleased with the recurring audit findings. However, there is a continuous commitment to work with the Auditor-General to unravel what has been a consistent lack of attention to recurrent audit findings. It was further highlighted that the acting CEO has taken on the task of attending to these matters faced by the Commission, particularly on the lack of consequence management. And even when appointing a new CEO, the Commission will ensure an increased focus on strategic management planning management and compliance including the development of standard operating processes.

The SHINE initiative does not fall within the financial year of review. However, the Commission will be happy to share more details about it with the Committee though this would require space to allow a thorough briefing. The SHINE initiative is briefly called the Social-National Harmony Effort, which sought to speak to the conditions on the ground in the communities where the July 2021 unrest such as social disharmony, racism, and the lack of solidary between neighbours and how change can be enforced. The Commission wrote to the Speaker and the Chairperson of the National Council of Provinces requesting an audience to share more about the SHINE initiative which is hoped to be ruled out in 2023.

Adv Andre Gaum, SAHRC Commissioner, indicated that the Commissioners would be appointing new leadership in the form of a new CEO and ensure that the leadership addresses the matters raised in the audit findings.

The reason the hearings of the July 2021 unrest continued to January 2022 was that the Commission could not finalise the hearings in December 2021. The report will include socioeconomic issues around the unrest with collaborative work with other entities and experts dealing with such issues. The report will therefore take a wide array of perspectives to ensure that it is comprehensive and speaks to the real issues at hand.

He added that the Commission has also presented to the Zondo Commission, especially in making recommendations on fighting corruption in Parliament.

On the Mbombela Court finding, the Commission was not in agreement with the Court’s decision and the matter was being appealed. It was mentioned that the error on the side of the Court was deciding what the status of the Commission’s directives would be and whether they would be legally binding or not. Such is mainly because the Commission appears to be after the Public Protector as a Chapter Nine institution of the Constitution.

On the issue of service delivery deficiencies at the municipal level, Commissioner Philile Ntuli said that the Commission shares the Committee’s concerns about the water crisis across the country. The Commission’s conclusion through various investigations is that the water crisis is caused by several relational matters including but not limited to poor management of water resources, capacity problems, and the lack of management of private-public partnerships. The Commission is working to deal with these issues at a national level, including creating an online water tracker which will synthesise all the different challenges faced by each water service authority.

Ms Kisoon added that the Commission’s new office space is not just a new destination but a whole new arrangement and way of working. She added that it was anticipated that there would not be support from all staff in the new mode of working. However, the Commission recognised the complexity of the matter and there was progress already in assisting the staff transition into the new space of working.

The summit and seminar on whistleblowing was a collective effort whereby the Commission worked with other institutions and certainly at the level of the comparative evaluation of the existing framework. Several external stakeholders and civil society organisations were included. However, the thinking around draft legislation or model whistleblower legislation was made to have been formulated and submitted to the Department of Justice.

Ms Chohan addressed the question of cost of living stresses, saying it was a matter of deep concern for the Commission. As she was currently in the Eastern Cape, she was receiving reports that food access stress was becoming more prevalent. The Commission must work with stakeholders to address this basic human need in communities where such stress is experienced. She shared a distressing statistic that in the Eastern Cape, 27% of children are stunted due to malnutrition – this is far too high. There is a direct link between peace and harmony and whether a populous is hungry. The Commission is looking at food production in the province and regulations related to packaged food. Too much good food is discarded in SA while children are going hungry. This involved departments such as social development and basic education and the private sector to find solutions to these problems. One could talk about strategies, planning, monitoring and evaluation but these were the real issues on the ground. She thanked Members for asking the tough questions.

The Chairperson hoped the July unrest report would dig deep on the reasons for the unrest and not cite the obvious issues and narrative of inequality – otherwise the report was not worth printing. If this was the reason, why were other poorer provinces not experiencing unrest?

The Chairperson said he thought of the SAHRC as a scrutinising institution yet it has been found wanting to the extent that the AG could not report on the credibility of information. This was very worrying. The commission should properly analyse internally to identify these problems and how they would be dealt with to see how the institution is supposed to function yet fails to perform – there is a gap between the two. He hoped the SHINE initiative could be further reported to the Committee, as the oversight body. He did not understand why the Commission wrote to the presiding officers of Parliament about the SHINE initiative when the Commission accounts to the Committee.

The Chairperson was concerned about the gap between budget spent and targets achieved – the Commission may embark on exciting projects but does not always align with the targets. He was interested in seeing the annual performance plan for the coming year. Performance is more than just ticking boxes. Beyond the annual report, the Commission needs to focus on the problems and what needs to change.

Ms Chohan thanked the Chairperson and said the team took on board the comments regarding the unrest report, which was due before the end of the year.

Regarding the state of the Commission, in terms of both capacity and organisational design, there is great concern and many discussions including with the AG, to understand what needs to be done and how. The Commission thinks it can be achieved through discipline and filling critical vacant positions. The Commission wants to ensure the Committee sees progress and a completely clean audit report.

She explained more about the SHINE project which was a broad initiative affecting everyone.

The Chairperson noted that the Commission would be given time to further report on the SHINE project. He emphasised the Committee was there to oversee the Commission and ensure it performed well; this was the perspective in which the questions were asked. He said the Commission should think about how the discussion today would be factored into discussions on the coming annual performance.

The meeting was adjourned.