SAHRC National Conference Report on Local Government Accountability, Service Delivery and Human Rights

Meeting report

The Chairperson greeted the Committee and apologised for any unpleasant noises. He declared the meeting open and welcomed the South African Human Rights Commission (SAHRC).

The Chairperson asked the Committee Secretary if there were apologies.

The Committee Secretary noted apologies from both Deputy Ministers from the Department of Cooperative Governance and Traditional Affairs (COGTA).  She noted that there were members of the Committee that were still struggling to connect to the platform but there was a quorum to start the meeting.

The Chairperson formally welcomed representatives from the SARC: Professor Bongani Majola (Board Chairperson), Ms Philile Ntuli (Full-time Commissioner), Adv Andre Gaum (Full-time Commissioner), Mr Vusumuzi Mkhize (Chief Executive Officer), Mr Pearcemore Mhodi (Research Advisor), and Ms Fadlah Adams (Senior Researcher and PLO).

The Chairperson said Friday was a critical day for the Committee as there was a lot of travel. However, this was an important topic for the Committee. He indicated that he was new to the Committee and therefore was not a part of the National Conference on Local Government Accountability, Service Delivery, and Human Rights. It was a rich conference and the Committee now had the opportunity to be briefed about the outcome of it. The Committee would also then be able to compare notes on how best to deal with things.

The Chairperson welcomed everyone and asked that the SAHRC brief the Committee as indicated. He said the briefing was the only item on the meeting’s agenda.

Prof Majola thanked the Committee for the opportunity to appear before them and present their work regarding an important topic. He said he would not introduce his delegation as the Chairperson had kindly done so. Professor Majola said the Committee granting the SAHRC an audience was encouraging and their request to brief the Committee followed the Local Government Conference that was addressed by the President of South Africa. This briefing aimed to share with the Committee the systematic challenges in the Local Government sector. The report the SAHRC had submitted made certain recommendations that would be highlighted in this briefing as some would perhaps be of great importance to the Committee.

Prof Majola said the solution to the Local Government and service delivery problems was approaching the problem from all angles including the oversight angle (which was the purpose of this meeting) and the constant monitoring and feedback angle (which is where the SAHRC was coming from). He said with the understanding of the Committee’s time limitations that he would hand over to Ms Ntuli and Mr Mhodi who dealt with the Local Government area at the SAHRC. 

Commissioner Ntuli greeted the Committee and acknowledged the presence of Commissioners and the CEO from the SAHRC. She said her colleagues may also be in a position to add to crucial discussions with the Committee in this meeting. Commissioner Ntuli said the SAHRC was pleased to be in this meeting and that this engagement was taking place against the backdrop of the release of the 2022 Census Report. The Census Report painted a clear picture of where South Africa was in terms of the provision of basic services. Over the trajectory of this constitutional democracy, there was a witnessed increase in access to basic services such as formal housing and piped water. She added that there, however, were still some significant challenges.

Commissioner Ntuli said the SAHRC’s main concerns were access to social and economic rights. Issues around bucket toilet systems and the presence of pit latrine toilets were still a challenge in many areas especially rural areas. She said these were some of the issues that the SAHRC hoped to deliberate on with the Committee. She recognised the presence of Mr Andrew Christoffel Nissan (SAHRC Part-time Commissioner), Adv Jonas Ben Sibonyoni (SAHRC Part-time Commissioner), the Municipal Infrastructure Support Agent (MISA), and Ms Mapatane Kgomo (Acting CEO of MISA). The SAHRC appreciated working closely with MISA. Commissioner Ntuli noted that there was an engagement last night on issues faced at the local government level with the SAHRC, Ministry, and MISA. She hoped that this engagement would be fruitful and lead to close working relations with the Committee. Commissioner Ntuli asked Mr Mhodi to take the Committee through the SAHRC’s presentation.

Local Governance Conference Report by the South African Human Rights Commission

Mr Mhodi proceeded with the Commission’s presentation.

Background and Context

• Service delivery-related complaints have been in the top five human rights complaints lodged with the SAHRC in the last few years.
• There is a correlation between challenges with service delivery and spikes in protest-related action at the municipal level.  The local sphere is in dire straits.
• The State of Local Government Report from 2022 points to 66 dysfunctional municipalities, 107 municipalities at medium risk, and only 30 municipalities were stable. 
• The Auditor General South Africa’s (AGSA) audit reports point to regression in terms of financial skills, accountability, leadership skills, irregular and fruitless expenditure, performance, and adherence to legislative prescripts.
• Several SAHRC inquiries pointed to challenges such as the insufficient attention being paid to water and sanitation infrastructure by municipalities. 4% of the budget in municipalities is being used for maintenance as opposed to the 8% set by National Treasury. Municipalities are water services authorities and struggle with sufficient skills, adequate spending grants, maintenance, and updating water services development plans.
• There have been several SAHRC investigations as a result of complaints.
• 33 municipalities are under Section 139 interventions.

Rationale for the Conference 

• The SAHRC convened a National Conference on Local Government Accountability, Service Delivery, and Human Rights from 31 August to 1 September 2022.
• The conference was convened to serve as a platform for stakeholders to collectively deliberate on the critical issues and challenges faced by the local government sphere. With the aim to co-create, with a broad cross-section of stakeholders, practical and sustainable solutions to address the systemic challenges faced by the local government sphere.

Recommendations from the Conference

The SAHRC noted that the Conference’s recommendations were advisory in nature.

• Professionalising Local Government in terms of reviewing the recruitment selection process at Local Government and instituting a minimum educational qualification criterion for public office holders.
• Reviewing finances in terms of the equitable share model, avoiding a one-size-fits-all approach, integrated planning and budgeting, unlocking funding opportunities, and increasing performance-linked increases in grants.
• Encouraging community participation at the local government level, especially during the Integrated Development Planning (IDP) process, consultations, and imbizos.
• In terms of the role of academics and researchers the adoption of a practical orientation and the building of solutions beyond the production of academic material.
• The empowerment of communities through community media.
• Dealing with climate change through municipalities developing disaster management strategies that respond more effectively to weather changes.
• Ensuring oversight and support to Local Government in terms of consequence management for poor performance, section 154 of the Constitution being the measure of first resort, depoliticising Section 139 interventions, and fast-tracking the Intergovernmental Monitoring, Support and Interventions Bill (2022).

Concluding Remarks

• Service delivery protests are an indicator that focused attention on the local sphere of government is required. Concrete, practical, implementable solutions to the challenges are also required.
•  Interventions such as the Intergovernmental Monitoring, Support, and Interventions Bill are crucial.

(See Presentation)

Mr Mhodi said local government could be allowed to fail. It was an important sphere of government and all hands needed to be on deck. He thanked the Committee for the opportunity to present.

Discussion

The Chairperson thanked the SAHRC and noted that the Committee appreciated their primary responsibility to engage with executives from all three spheres of Government on behalf of the people. This responsibility included asking difficult questions and being custodians of the law that governed the country specifically laws that related to local governments. He said the topic at hand was critical and this should be the start of their serious engagement with issues that had been raised especially at this time of the year.

Mr J Smalle (DA) appreciated the SAHRC and said he saw the SAHRC as a critical watchdog within society that at times pressured government institutions. He said as a person who had laid complaints with SAHRC concerning issues that affected people when looking at the Limpopo water reports he had a question. He asked the SAHRC why a claimant in some cases wasn’t awarded the SAHRC’s report. When a report was finalised the SAHRC made it available on their various platforms so what was the reason for not giving a claimant who complained direct access to the report from the beginning? He asked why the claimant was only notified about the SAHRC investigating their matter and not given the outcome of the investigation too.

Mr Smalle referred to the pressuring of the government through the setting of terms in the case of issues around drinkable water and the education system. There was a situation in Greater Letaba Municipality where a wall collapsed on two learners resulting in their deaths. In such a situation where a complaint was lodged and the concern was the safety of learners, it would be thought that stronger terms would be placed by the SAHRC to pressure the government. Mr Smalle asked how often the SAHRC placed stricter terms to pressure the government into rectifying situations that impacted society. He asked if this was something the SAHRC did and if so was there a report or circular on proposals in the last two years the Committee could be sent.

Mr Smalle said this was needed because holding the executive accountable placed a strong emphasis on their ability to function within the Committee and as members of Parliament. He asked if sometimes the SAHRC’s ability to pressure the government failed and did not result in the rectification of a situation. The rectification of a situation meant a commitment by the government to resolve certain issues over the Medium-Term Expenditure Framework (MTEF) period. It also allowed members of Parliament to monitor the government’s progress over the period.

He said a good example of this was the court case on the presence of pit latrine toilets in the Eastern Cape and Limpopo which resulted in the deaths of children. The court case resolved that pit latrines needed to be phased out over a certain period of time. This was a distinct example of the government being pressurised through the placement of strict terms. As a result of this case, the government had to reprioritise its services.

Mr Smalle wanted to speak about dealing with water reports. When evaluating the Blue Drop Watch Report, it could be noted that only 26% of our local municipalities complied with clean and safe drinking water requirements. He asked what the SAHRC's role was in this area. He noted that Hammanskraal was a good example that was fresh in their minds and one he did not think was an isolated incident in South Africa.

He asked for one or two simple answers to his questions and reports on cases where the government was pressurised to resolve issues through the placement of strict terms.

Ms E Spies (DA) thanked the SAHRC for its work and noted that the SAHRC’s recommendations were advisory. She understood the SAHRC’s mandate but wanted to make a few comments on this and get the SAHRC’s views. The SAHRC and other Chapter 9 institutions’ findings should impact Section 139 processes. If a combination of conditions existed Section 139 needed to be considered first and second the adverse findings from two or more Chapter 9 institutions.

Ms Spies provided an example. She said municipal managers and directors received comments on their employment records that had to be disclosed in future employment applications. A disqualification criteria was needed for such and disciplinary procedures needed to be implemented in the case of implicated officials and department heads. The findings of the disciplinary procedures needed to remain part of the employment records of those implicated for seven years.

Ms Spies said Chapter 9 institutions could apply to a court to enforce sanctions against implicated officials. She wanted to know the SAHRC’s view on this. She said the Commission made little mention of the District Development Model (DDM) which seemed to be the solution to fixing the state of local government considering they worked within municipalities.

Ms Spies said the information presented needed to be used alongside several stakeholders who had appeared before the Committee. This was to ensure there was a practical and workable plan of action and not just matters being presented to the Committee in this fashion which was valuable but advisory. This was not to say it was not appreciated because going through the report it highlighted things the Committee experienced during oversight visits on numerous occasions. Ms Spies said they needed to put their heads together to figure out how this information was going to be used to fix the state of local government.

Ms K Ceza (EFF) said they needed to ask themselves how they got to this crisis point. A crisis point where they now had to react instead of having listened from the inception of the White Paper on Local Government. That was where they needed to start and begin to locate the historical issues of local government from its initial stages of establishing these wall-to-wall municipalities. In the White Paper, there was a so-called mini-constitution created around 2002 where the assumption was made that the municipalities would have substantial sums of money from services charged. This assumption was made without the appreciation of historic poverty, unemployment, and inequalities. The White Paper assumed that sufficient revenue would be generated to ensure sustainable municipalities and that there would be adequate funds from national and provincial transfers.

Mr Ceza said the atmosphere of cooperation and trust between communities would be led by the municipalities. However, the reality was to the contrary because the Auditor General South Africa (AGSA) reported that 66 municipalities were dysfunctional, 107 municipalities were at medium risk and only 30 municipalities were stable. He asked how the SAHRC proposed, on slide 8 of the presentation, the review of the equitable share model and how the review would take shape without appreciating the division of revenue formula in terms of its assumption.

He said there were 1993 municipalities during apartheid and at the start of local government in 1996 there were 883 municipalities. Municipalities were then reduced to 336 and now we sit at 257 municipalities. He asked with the proposed new municipalities as heard in yesterday’s presentation how the SAHRCs reconciled with this.

Mr Ceza said he was interested in the professionalisation of local government. This was because they had amended the Systems Act to ensure there wasn’t an atmosphere of political interference at a municipal level and municipal managers that were accountable had to be employed permanently which was now happening. The need for permanent employment was for stability and institutional memory. He asked what minimum education qualifications criteria the SAHRC was proposing within the context of South Africa.

Mr Ceza also asked how this criterion would be established without appreciating that these people came through political parties that had the responsibility to oversee their members and ensure they had the necessary education qualifications and that self-development was taking place. He asked how this message could be sent to political parties. This was because the electoral system we have meant people voted for came through political parties and as a result, we were now stuck with almost 300 councillors who could not read or write in Kwa-Zulu Natal (KZN) alone. This meant these councillors could not process statute books which was required in local government as it was a highly legislated sphere. These councillors could not tell you the SAHRC was in Section 184 of the Constitution which was a crisis on its own within local government.

His next question was whether the SAHRC received complaints regarding human rights abuses at the hands of institutions within COGTA such as the CRL Rights Commission and the Municipal Demarcation Board.  This was so that these abuses could be reconciled into a public report. 

He asked if the SAHRC had received the petitions that had been sent to the Committee from Emalalhleni Local Municipality in the Eastern Cape. He said there was an Emalahleni Municipality in both the Eastern Cape and Witbank in Mpumalanga.

Mr Ceza said Amathole District Municipality, since 2016, had a problem with providing water such that taps were not being vandalised. He said in the presentation there was no mention of Emalahleni Municipality and asked if they had similar issues to the Amathole district.

Ms P Xaba-Ntshaba (ANC) welcomed the SAHRC’s presentation and thanked the organisation for its work. Her question pertained to the issue of building hijackings within metros, specifically Tshwane, Ekurhuleni, and Johannesburg. She knew of three to four buildings in Tshwane that had been hijacked by South Africans and foreign nationals. She asked what measures the SAHRC had put in place to ensure that people did not unnecessarily die in these hijacked buildings. These buildings being hijacked were not in compliance with required maintenance stipulations. She asked what plans the SAHRC had to ensure that buildings were not hijacked as people were dying in these buildings.

Ms Xaba-Ntshaba asked if the Commission had followed up on the recommendation concerning local government service delivery-related responses issued over the last five years as per the conference. She asked what the proposed minimum education qualifications required for municipal public officer bearers that would be most relevant to the South African context were.

The Chairperson said this concluded the questions the Committee had for the SAHRC. He said what was critical was to indicate the context of why the SAHRC was asked to make a presentation. The reason for the presentation was that the report was tabled before the Speaker of the National Assembly (NA) which was then referred to the Committee by the Speaker. Most of the issues raised in the presentation were familiar to the Committee. He said what was critical was what needed to be done. The Conference grappled with what needed to be done and within the context of the Committee’s oversight, the question would be critical. Whilst the Committee raised issues the intention was to sharpen what needed to be done. This was within the context of the Committee, Commission, and any other Chapter 9 institution relating to how the Executive was executing their task.

The Chairperson said he would now allow for the Commission to respond to some of the issues raised.

He said he was trying to give the context that the Committee wanted to hear from the SAHRC so it could develop an approach regarding what needed to be done. This was a general question across the country. The Chairperson said this was because people perceived local government as being closest to them and therefore were looking at what was being done at a local government level. 

The Chairperson asked to respond to the questions posed by the Committee.

Commissioner Ntuli said Professor Majola indicated to her that he was dealing with a crisis in the office. She thanked the Members for their questions and the opportunity to engage with them. She noted the presence of Commissioner Gaum, Commissioner Nissan, Commissioner Sibonyoni and Mr Mkhize.

Commissioner Ntuli said the question raised by Mr Smalle on the issues concerning pit latrine toilets and the safety of learners would be dealt with by Commissioner Gaum. In terms of the questions on how often the Commission put Government on terms and the rights related to claimants receiving the outcomes of investigations would be dealt with by her.

Commissioner Ntuli said she would ask Commissioner Sibanyoni who headed their

internal legal subcommittee to also respond especially concerning the difference between their reports. The SAHRC was empowered to conduct several functions including investigating and researching. Commissioner Ntuli said the conference was not an investigative exercise but rather an information-gathering exercise. It was an information-gathering exercise under the Commission’s powers as per the Constitution of conducting research and this was the reason for the report’s recommendations being advisory. She asked Commissioner Sibanyoni to expand on this.

In terms of the questions on how we got here and the wall-to-wall municipalities vis-a-vis the proposals for new municipalities, she said Commissioner Nissen who headed their civil and political rights portfolio would respond to them. Commissioner Ntuli said the questions on hijacked buildings and the proposed minimum education requirements would be dealt with by her. She noted after the Commissioners responded to their assigned questions she would respond to the question about the DDM that Ms Spies raised.

Commissioner Gaum said the questions he would be responding to pertained to the issue of pit latrine toilets and reports on the government being put on terms and how this process worked. The Commission’s mandate was to protect and monitor human rights. The protection aspect came in when there were allegations of human rights violations. In the circumstance of a human rights violation, the Commission could do one of three things. Commissioner Gaum said if the circumstances allowed the SAHRC could mediate the matter. The Commission could use negotiation, mediation, and conciliation. There were then two other options open to the Commission which included the investigation of the matter and issuing a report. Within this report recommendations and directives were issued. The SAHRC’s view was that their findings related to human rights violations were binding.

Commissioner Gaum said the SAHRC could issue binding directives and this had been done in several instances. He said the complying of reports to be sent to the Committee on cases where binding directives were issued by the SAHRC was a good idea. This could be the beginning of the implementation of this idea of delivering such reports in the future. This impacted cooperative governance specifically municipalities. The reports would be made available to the Committee.

Commissioner Gaum commended the Committee for this engagement with the Commission following their receipt of the report from the Speaker. This was a good first step and the SAHRC perhaps needed to look at reports it had issued in the last two years or more and make them available to the Committee. Reports that impacted cooperative governance and municipalities specifically. He said another option the SAHRC had was litigation and in the context of pit latrine toilets the Commission had done a lot of work.

The Commission, in 2021, wrote to all the provinces to ask for details from each of their schools on their pit latrine toilet and water and sanitation situation. The Commission received a response from the provinces and at that stage contemplated potential litigation. The SAHRC decided to not pursue litigation but rather followed up by writing again to the provinces about the specific cases where there were issues with pit latrine toilets. In their follow-up, the Commission requested an update. Some provinces updated the Commission, other provinces asked for extensions which were granted and subsequently updated the Commission and other provinces did not respond at all to the Commission. In the case of provinces that did not respond, the Commission was they were contemplating the next step which possibly could be litigation. There could be litigation concerning provinces that had not made reasonable progress as far as pit latrine toilets and those that had not responded to the Commission.  

Commissioner Gaum said the SAHRC had raised in a meeting with the Minister of COGTA last night the potential role municipalities could play in assisting their schools with water and sanitation. This suggestion could perhaps be discussed further even though assisting schools with such was primarily the responsibility of the Department of Basic Education alongside the Department of Public Works and Infrastructure.

Commissioner Gaum reiterated that the Commission did put the government on terms and then instituted litigation. The SAHRC also issued reports depending on the circumstances the recommendations in these reports contained specific directives for the government.

Commissioner Sibanyoni said he would respond to the differences in sanctions and focus on the SAHRC’s powers. The SAHRC’s constitutional mandate was found in Section 184 of the Constitution. Commissioner Sibanyoni emphasised that the complaints lodged were received by their various offices across the country.  The Commissioners resolved that there should be a legal committee of Commissioners who would then look at the motivation or request for litigation. He was the Chairperson of the Legal Committee of Commissioners. This Committee looked at the litigation requests that came from various provinces. If the Legal Committee felt indeed rights were violated they recommended the request to the Full Body of Commissioners. The Full Body of Commissioners would then approve the request for litigation.

Commissioner Sibanyoni said it would be amiss to not mention the Commission, as per Section 184(2)(b), has the power to take steps to secure appropriate redress where human rights had been violated. The Committee needed to be aware that there was a difference of opinion in the Judiciary where two courts said the SAHRC, unlike the Public Protector, had no binding powers.  A judge at the Mpumalanga Division of the High Court stated that the drafters of the legislation tabled the Chapter 9 institutions in chronological order and that placing the Public Protector above the SAHRC meant the SAHRC had lesser powers than the Public Protector. The SAHRC took this matter on appeal and it was now before the Supreme Court of Appeal (SCA). The Commission appealed this matter because they felt the judgement that the SAHRC was below the Public Protector in power was a mistake.

Commissioner Sibanyoni said the SAHRC had the power to litigate. The SAHRC was not an advice centre and this is made clear by Section 184(2)(b) of the Constitution. In the advent of wall-to-wall municipalities, local government was the sphere nearest to the community and that was why most complaints concerned local government not fulfilling their duties. The recent census statistics that were presented to the President showed a slight shift and improvement in terms of basic services. He thought the improvement in basic services was the result of the SAHRC’s and the Portfolio Committee’s work. Commissioner Sibanyoni said the communities the Commission and Committee were serving were the same.  The Committee held the Executive accountable and the SAHRC was a watchdog. He used the analogy of a dog because at the sight of an invader, a dog started barking as a warning similar to the SAHRC and when the invader did not listen a dog started biting just like the SAHRC.

He said this was why as a last resort when their directives were not adhered to the Commission exercised in full, its constitutional powers, as set out in the Constitution.

Commissioner Nissen said he wanted to raise a few things. The first thing that came out of the report pertained to what the qualifications were to become a municipal or city manager. There was a prescribed qualification criterion but what came out of the conference was the issue of insufficient capacity.  The question then was how local government could attract good, qualified people who were competitive within the market space. To get a good engineer one needed to compete in the market space.

Commissioner Nissen said the lack of capacity within local government at a technical level was because the government lacked a competitive edge in terms of the compensation it offered to these technical people.

Ms Spies asked Commissioner Nissen to repeat this important point as his audio cut out. She apologised to the Chairperson for her interjection.

Commissioner Nissen said that the issue of not being able to attract competent and technically skilled workers such as engineers, quantity surveyors, architects, town planners etc to work for local government was because the government was not offering market remuneration packages. The government not offering market-competitive remuneration packages was something that needed to be looked at so that technically skilled workers could be paid market-related rates which would also curb corruption and instances of people faking qualifications. He added that technically skilled workers were needed in local government.

Commissioner Nissen said the previous day the Commission had the opportunity to meet with the Ministry and officials from COGTA. In terms of the question about how we got here, it was an issue from an oversight and public representative perspective and he did not know whether this still happened but public representatives on Mondays and Tuesdays needed to meet with their constituency and listen to people’s complaints. He said councillors who were closest to the community needed to not just show up during election time and after that never be seen again.

He said poor and vulnerable people understood that public representatives did not have magic wands to make things such as houses to just appear. Rather what these constituencies wanted to know was that their public representatives were listening to them and communicating developments made at each stage. Once public representatives listened, communicated, and serviced their people things would improve. He said unfortunately though communities have been abandoned by the public representatives so their voices cannot be heard.

It was important to note that the bill about frontline services from our local government where people could not get these services had been abandoned. He said people had to stand in long queues and there was no management or responses given to their issues. There was an issue of poor budgeting and the Integrated Development Plan (IDP) had become in some instances a box-ticking exercise. He said you couldn’t have 30 people organised from one community and then say here is the IDP. The IDP did not favour poor communities but rather suburbs and affluent societies. The IDP needed to be made inclusive and it needed to table people’s issues so that public representatives in the areas could run with them.

In terms of vandalising infrastructure, there were communities where sewage pump stations were vandalised and sewage was running everywhere. The Commission always stated that rights came with responsibilities so it did tell communities that they had rights but also had the responsibility to look after infrastructure. He said people saw infrastructure being vandalised and one of the most exported metals in South Africa was copper but this wasn’t the result of mining but through scrapyards. People sold copper to scrapyards then scrapyards exported this copper.  The theft of copper needed to be criminalised and scrapyards needed to do more due diligence. This was because people were stealing copper this included drains on roads which damaged people’s cars.

Commissioner Nissen said it was important that mediation or rapid response be put in place where the danger points and people’s frustrations in terms of socio-economic rights such as housing and health could be set out.  He said his last point was that a rapid intervention from the Commission (which was done) and Local Government was needed. An intervention where someone from Local Government could speak to people when there was a crisis. This was because the cost of violent protest was high and this could be confirmed by the South African Local Government Association (SALGA). The Commission tried to prevent the destruction of local government and municipal property and had done so.

Commissioner Ntuli said there was an important question that was raised that pertained to the Commission’s relationship to other Chapter 9 institutions such as but not limited to the CRL Rights Commission. She asked if the CEO could address this question because he sat on the Forum for Institutions Supporting Democracy (FISD) as well as its technical team which was where the heads of Chapter 9 institutions met regularly to discuss collaboration and issues that were before them.

Mr Mkhize said there was a strong collaboration effort between Chapter 9 institutions in terms of devising and looking at areas of common interest where they could collaborate. They were bound by the FISD which met quarterly to look at how to share issues that affected human rights or that the FISD could collaborate on. In terms of collaboration, a program would be designed and it was against this programme that they reported on their collaboration and interventions. The FISD had a technical team. This meant for example when there was a matter sent to the SAHRC which was found upon analysis to need the CRL Right Commission to address it could be referred to them. He said this was to ensure these kinds of matters did not fall through the cracks.

Mr Mkhize said if the Public Protector found there was a violation of human rights in a matter that was within the SAHRC’s mandate, the Public Protector would refer the matter to the SAHRC. Currently, the SAHRC has signed on with AGSA regarding the issue of referrals between the two institutions. This was to ensure that the AGSA and SAHRC’s relationship was further regulated at a bilateral level and not just at a multilateral level. 

He said the leadership at the principal’s meeting would be presented with this information. There was then an agreement on the programme of action which was where it was decided whether there would be joint dialogues, meetings, or conferences within the communities. It was also where it was decided which Chapter 9 Institution would lead this burning issue that affected human rights.

Mr Mkhize added that the SAHRC’s issue concerning its powers being binding was one that it should not fight for alone. In terms of the Chairperson asking what needed to be from here when the work and recommendations of the Commission were ignored and not implemented the first people that needed to assist were parliamentarians. This was because the Commission accounted to Parliament and when their recommendations and interventions were ignored and the loss of life occurred such as in Hammanskraal the question became where was the accountability.  He added it was the same leadership that was made up of political parties running the municipalities.

Mr Mkhize said this was why the SAHRC was fighting for its powers to be binding. The Commission, however, also believed that rather than getting to the stage where its binding powers were exercised, voluntary compliance needed to be enforced. It needed to be enforced at the level of Parliament as the oversight body specifically with respect to the portfolio committees responsible for municipalities. Ensuring voluntary compliance would mean less expenditure on litigation and more focus on delivery. The SAHRC’s constitutional mandate was to strengthen democracy, and this could only be done with the support of our oversight committees. 

Commissioner Ntuli said in response to Mr Smalle’s question about a complaint raised that Section 18(5) of the South African Human Rights Commission Act stated that the findings of an investigation by the Commission must, when it deems it fit but as soon as possible, be made available to the complainant and any person implicated thereby. She said the Commission did as a matter of practice try to communicate with complainants at the stage of finalisation of an individual complaint. This was done following their complaint procedure. However, there were instances where the SAHRC conducted an investigation and based on their observation the issue was found to be systemic. In these instances, the Commission waited to finalise the investigation report and thereafter issued a provisional report to stakeholders. She added these stakeholders would then submit comments to the Commission about this provisional report before the SAHRC started on the final report.

Commissioner Ntuli said on Monday the 16th of October 2023 the Commission would publish findings on their investigation on water in Limpopo. A report had been released similarly on their investigation on water in KwaZulu-Natal (KZN). The KZN report was published two weeks ago. This also related to the question that was asked about the Emalahleni Municipalities in the Eastern Cape and Mpumalanga. The Commission conducted its investigations through the national and provincial offices. The provincial offices were used especially to reach local communities. Service delivery investigations were especially conducted through provincial offices. In terms of observation and outcomes concerning Emalahleni Municipality the report on service delivery issues in Mpumalanga has been finalised. This report will be released following the reports on Limpopo and contain information on Emalahleni Municipality and other municipalities within Mpumalanga.

Commissioner Ntuli said the question on the DDM was important. The Commission welcomed the DDM noting the challenges that had been observed in terms of coordination of the functions of local government institutions and the culture that had developed of working in silos. The SAHRC thought that DDM would address the challenges by not only assisting in coordinating the function of local municipalities within a district but also providing the necessary oversight. As well as working with the Office of the Premier to realise the constitutional aspiration related to intergovernmental relations and the importance of the three spheres of government working together in a seamless and coordinated manner. She said that the Committee would have noted in the KZN Water Report that the Commission emphasised the need to strengthen the DDM’s function and ensure that through the DDM there were critical interventions for the local government crisis.

She said in terms of the question of how we got here, there was an elephant in the room which was the assumptions made in the White Paper on Local Government. The main assumption is that elected leaders would be ethical, dedicated, and have a love for their communities. There was also the assumption that local government in terms of its institutions and development agenda would be able to sustain itself through the collection of revenue. However, there was a crisis being witnessed on the ground, many municipalities depended on grants to survive and were struggling to sustain themselves through revenue collection. This meant it was difficult to realise the aspirations of the White Paper. She said some of the problems were policy related and reflection needed to take place on the thinking around local government before the addition of new municipalities.

Commissioner Ntuli said the addition of new municipalities needed to be preceded by a conversation on the efficacy of the model that we had now vis-à-vis the assumptions made in the White Paper. She said they needed to ask if they were moving in the right direction and if not, what were the challenges and how could they be addressed.

Commissioner Ntuli said there was an issue of rapid urban migration and projections stated that by 2023 almost 70% of the South African population would live in urban areas. The impact of this was not just on housing but also access to other basic services, food, and employment. This issue spoke to the question of urban planning and the undoing of apartheid spatial planning. It also raised the question of whether local government was prepared for this urban migration.

In terms of the hijacking of buildings, at the centre of it was the question of who owned these buildings and what responsibilities did they have to ensure their buildings were maintained and secure. Commissioner Ntuli said what happened in Marshalltown, Johannesburg raised important questions on the responsibilities municipalities had as building owners. Municipalities were responsible for maintaining and securing their buildings. She said what happened when municipalities neglected their building was what then became human rights violations. These were the questions and problems the SAHRC was hoping to work on together with the Committee as an institution established to provide oversight and accountability. The SAHRC and the Committee could work together to prepare for some of the aspirations of the National Development Plan for 2030.

Prof Majola thanked the Committee for their questions. He said the SAHRC would continue to reflect on the Committee’s questions and suggestions. He appreciated the Committee allowing them to present to them. He noted that the FISD had requested the Speaker organise a meeting with portfolio committee chairpersons to discuss the recommendations made by Chapter 9 institutions. The FISD requested this meeting because Chapter 9 institutions made recommendations that departments did not agree with, which they understood, but there were also undisputed recommendations that departments had not implemented. He said Chapter 9 institutions believed that oversight bodies such as portfolio committees could in this meeting help with an agreement with departments that in terms of recommendations departments accepted portfolio committees would hold them accountable concerning implementation. This was needed because departments agreed with many recommendations that Chapter 9 institutions had made but there was no implementation on their part which resulted in people suffering due to the non-delivery of services.

Prof Majola said if the need arose he hoped the Committee would allow them to come back. He thanked the Committee again and wished them a good weekend and safe travels.

Closing remarks from the Chairperson

The Chairperson said he would assume there were no follow-up questions.  He wanted to respond to the comments made by Prof Majola. Whilst the Committee Members raised questions, they were equally aware of their responsibility as first public representatives and second, as an extension of the Office of the Speaker doing oversight. Their interaction was beneficial to both the Committee and the Commission. 

He said the Committee had learned a lot from the SAHRC’s presentation and responses. The Committee will be inviting the Commission again soon. This was because the issue of non-responsiveness to demands which were the needs of the people which could be translated to rights was a concern. Parliament wanted to respond collectively to this as the Commission had come to an agreement with the Executive on certain recommendations but those recommendations were still not implemented. This was a problem. The Committee had taken notes and the documents which fortunately coincided with their receipt of the audit outcomes of the Public Finance Management Act (PFMA).

The Chairperson said the Committee was engaging with departments and entities that reported to them. The AGSA made recommendations that should assist with their action plan. He said this engagement would enrich their action plan and assist them with intervening on behalf of the people.

The Chairperson thanked and wished everyone a good weekend.

The meeting was adjourned.