SAHRC 2022/23 Annual Report; Shortlisting of SAHRC candidates; Cannabis for Private Purposes Bill: Department response to submissions; Consideration of judicial letters

Meeting report

The Chairperson welcomed everyone to the meeting.

The Chairperson checked if there were any apologies.

There was none.

SAHRC Presentation
Prof Bongani Majola, Board Chairperson, SAHRC, said the Commission was grateful for the opportunity to present its annual performance report and update the Committee about the developments at the Commission.

He mentioned all his colleagues who were joining him on the platform.

He said the Commission was greatly touched by the Committee’s visit where it paid tribute to Commissioner Angie Makwetla, who due to Covid-19, had suffered a stroke and is now disabled. She declined the nomination and will no longer be part of the Commission when her turn ends in December 2023. The institution has been grappling with performance issues in all programmes which leaves much room for improvement. The decline in overall performance was of concern but the Commission was committed to improve performance. One of the reasons was the significant loss of staff at the senior management level. Supervision had been complicated by Covid-19 due to staff operating remotely. Since December 2022 staff is no longer allowed to work from home. The new CEO, who was appointed in March 2023, was given clear instructions with a deadline and has already started implementing consequence management actions as highlighted in the Auditor-General’s (AG’s) report. The SAP system was obtained to reduce control weaknesses which would hopefully lead to the removal of negative audit findings. The strategic planning sessions were facilitated by an external professional body, i.e. the National School of Governance. The AG was asked to periodically review the targets in the Annual Performance Plan (APP). The CEO had introduced a quarterly review of the plan to ensure greater accountability. An Institutional Improvement Plan was adopted to improve overall performance. The Chairperson and the CEO have been meeting on a monthly basis on what needs to be done and to keep abreast of changes in the environment. The failure of many municipalities, the lack of access to healthcare, and rampant crime require better strategies from the Commission. The Mpumalanga Division of the High Court judgment had drastically reduced the powers of the SAHRC. In the AfriForum matter, the South Gauteng High Court ruled that the SAHRC was not empowered to decide whether a violation of human rights had occurred. Both judgments have been taken on appeal. If not successful, the institution would be reduced to a toothless entity but this was what the authors of the Constitution had envisaged.

Performance Overview
Mr Vusi Mkhize, CEO, SAHRC, reported a decline in overall performance from 61% in the 2021/22 financial year to 50% in the year under review. Only 19 of the 38 targets were achieved. The deteriorating performance was attributed to several reasons, including the reluctance of staff to return to the office after COVID-19 and the lack of oversight when staff were working from home. The high vacancy rate in senior management positions was a major factor in the lack of oversight and monitoring. The main reason for the resignations is the offer of better salaries at other government departments. Adverse audit outcomes were reported due to the misstatement of targets achieved and the lack of reliability on the measurability of indicators and targets linked to Programme 2.

Financial Performance
Mr Lutendo Siphugu, Acting CFO, SAHRC, stated the institution recorded a surplus of R8.2 million in the year under review which was a marked improvement on the deficit of R100 000 reported in the 2021/22 financial year. Irregular expenditure decreased by R300 000 to R11.1 million in the current year. Similarly to the previous financial year, the institution did not incur any fruitless and wasteful expenditure. The financial viability assessment by the AG resulted in a ‘Good’ overall assessment. The AG expressed an unqualified audit opinion with no material findings.

(See Presentation)

Discussion
Mr J Engelbrecht (DA) noted similarities between the 2022/23 Annual Report and the engagement of the previous year in terms of the findings in the AG’s report and the steps to rectify the dysfunctionality in the institution. Dysfunctionality is normally measured according to targets achieved versus the budget. Last year the institution spent 90% of the budget and achieved 50% of the targets. Of great concern is the integrity of all SAHRC reports based on the audit findings about the misstatement of targets achieved. He was sceptical that the number of repeat findings and the lack of consequence management would improve. The high staff turnover was indicative of a toxic work environment. He questioned the lack of information about dysfunctional municipalities in the Annual Report. The Commission was losing public confidence and legitimacy as a result of the lack of support and follow-up on service delivery complaints. The court findings, if not successfully challenged, could be devastating for the existence of the Commission. He was concerned about the perpetual findings that either remained the same or were regressing. He wanted to be convinced that the same issues would not be discussed when the next Annual Report is presented.

Mr W Horn (DA) said all engagements with the Commission centred around the very slow manner in which investigations had been unfolding especially when the nation was in need of speedy processes and guidance. Because the Commission is unable to deal with matters speedily, it creates a vacuum. He found it astounding that the institution had moved from a disclaimed audit opinion to adverse findings on the programmes for the Protection and Promotion of human rights. The outcomes of the Protection and Promotion programmes proved that insufficient work was being done. The Commissioners who would be returning would have to explain their role in the attempts to improve the situation. Discord amongst the commissioners was observed during the last oversight visit. He questioned whether teamwork and synergy were put on a proper footing and suggested that it might be time to press the reset button. The Committee will have to remark on the regression in performance over the past few years in the Legacy Report. He took note of the attempt at a turnaround strategy to improve performance but was sceptical that the current cohort of commissioners would be able to turn the institution around. The new commissioners cannot be bound by the strategies in the document.

Adv G Breytenbach (DA) remarked that year after year, the Commission promised to improve performance but was always offering reasons for not meeting targets and for not spending money wisely. This was the song throughout the entire Sixth Parliament. No discernible improvements had been reported in terms of executing the SAHRC mandate. She found the situation disappointing because the institution is tasked with an exceptionally important function. She agreed with Mr Horn that the new appointees cannot be held to the turnaround strategy that was being presented. She shared his lack of faith in the current commissioners and administrators to turn around the institution.

Mr R Dyanti (ANC) stated that the SAHRC was the worst-performing entity in the cluster. He deemed it a crisis and was expecting the Chairperson to give an indication of the crux of the problem. Other than mentioning the AG’s opinions, the Commission had not specified the problem. He asked for an explanation about the difficulty regarding the measurability of targets that the AG had reported on. He noted the complaints of the Chairperson about the court judgement on the powers of the Commission. He asked if the recommendations on the court judgment could be made available so that the Committee could assist the Commission. He suggested that the Commission needed a rescue plan. He wanted to know if corrective measures were taken to rescue the situation after the Annual Report was published. He labelled the performance as pathetic and asked the Commissioners to motivate why they should be reappointed.

Ms N Maseko-Jele (ANC) said the report was very bad. She cited the phrase ‘if the foundation is wrong, it is impossible to fix the walls’ and said the situation demands a better strategy. She did not think that the existing team was able to bring about the turnaround that was needed. She noted the declining performance percentages, the repeat audit findings, the high vacancy rate, the issue of non-compliance to supply chain management (SCM) policies and procedures, and procurement weaknesses. The worst part was the adverse findings on the promotion of equality and the prevention of discrimination. She asked if the Commissioners had noted the video on social media about an Israeli spokesperson who labelled South Africans as subhuman and representing the lowest scale of humanity. She wanted to know what the Commission was intending to do about the statement.

Dr W Newhoudt-Druchen (ANC) echoed the sentiments of her colleagues about the disappointing performance of the Commission. Vacancies could not be the only problem. She expected the team to be honest in stating what the barrier was for the Committee to understand the problem. She questioned the role of the Internal Audit Committee in overseeing and assisting the Commission in terms of what was supposed to be done to increase performance.

Prof Majola took responsibility for the non-exemplary performance over the past two to three years. He understood the frustration and anger about the report but said the Commission cannot perform without proper resources. The Commission lost a number of experienced senior executives who used to provide support and guidance in the provinces. Due to Covid-19, the institution lost the ability to monitor because people were working from home. It was still a challenge to get all staff members to return to the office. The SAP system was procured to deal with irregular expenditure. Consequence management and discipline at all levels in the institution are being enforced. Work has been done to be more accurate in the manner of reporting. The Commission was grateful for the assistance of the Committee on issues of human rights violations. The Premiers had been approached for their cooperation and support to implement recommendations. He acknowledged the adverse findings regarding the Promotion and Protection programmes were unacceptable but explained that this was the first assessment of the programmes. It was a new audit area, and the expectation of the AG was unclear. He replied to Members about the court findings and stated that senior advocates have been properly instructed. The SAHRC is of the view that recommendations are binding and was appealing the judgment. The opinion of a single judge should not be accepted as the final word on the matter. Corrective actions had been taken to address the decline in performance, but he felt that the increase in human rights violations should not be judged only on the basis of the work of the Commission. Some municipalities had collapsed, leaving the responsible structures unable to provide basic services to communities. He assured the Committee that the resignations were not due to a toxic work environment. Bonuses were not paid due to budget cuts. Some staff members joined the Department of Justice for better salaries. Losing staff affected the ability to perform. The Commission was finding it difficult to attract staff and would not be able to survive without resources. Funds were diverted to deal with unrests, the flood situation, and the Covid-19 pandemic. Engagements with the AG have been scheduled at the time of preparing the Annual Report to address the adverse audit findings. He was positive about the turnaround if the strategies are implemented. The commissioners and staff are committed to improving performance.

The Chairperson requested the Commissioners to indicate whether any of them had seen the video referred to by Ms Maseko-Jele.

Ms Fatima Chohan, Deputy Board Chairperson, SAHRC, had not seen the video and requested Ms Maseko-Jele to share the video with the Commission. The SAHRC is known for having dealt with such matters in the past.

Adv André Gaum, Commissioner, SAHRC, replied to Mr Horn about the slow rate of finalising investigations. Timeframes for the complaints handling process had been adjusted and changes were made to the complaints operating procedures. The Commission also met with the Minister to discuss proposed legislative amendments to address issues canvassed in the court cases. The changes will make a significant difference in clarifying the powers of the institution.

Adv Jonas Sibanyoni, Commissioner, SAHRC, explained that the judge in the Mpumalanga Division of the High Court expressed the view that the powers of the SAHRC must not be regarded as similar to the powers of the Public Protector. The matter is being taken on appeal to the Supreme Court of Appeal and if need be, to the Constitutional Court because the hierarchy of listing the Public Protector above the SAHRC does not mean that the powers of the institution should be subordinate. He remarked that part-time commissioners have been working just as hard because focus areas assigned to part-time commissioners are similar to those of full-time commissioners.

The Chairperson asked how many employees have qualified for bonuses.

Mr Mkhize replied that based on an analysis of past performances, the number was above 50%. However, it was difficult to justify high performance for individuals when the overall performance of the institution was so low. The disjuncture between individual and organisation performance was problematic. The institution does not want to entrench an entitlement to bonuses and was making a determination about the persons who qualified for bonuses. He stated that improving the performance of the SAHRC is the focus of the turnaround strategy.

The Chairperson intervened and asked Mr Mkhize to just answer the specific question related to the bonuses.

Commissioner, Rev Chris Nissen, understood and respected the AG’s findings. However, he felt that a number of issues had been under-reported because the SAHRC was not visible in the media. The existing commissioners wanted to leave a measure that the new commissioners could take forward.

Ms Chohan said she was not amongst the cohort of commissioners whose term will be ending in December 2023. But felt it would be unfair of her not to speak about the work of the commissioners. Commissioners do not get involved in the administration function. Their role includes the promotion of human rights, strategically intervening in litigation, and doing a fair amount of monitoring. South Africa is a difficult place with crises arising all over the country all of the time. When schools and hospitals come under threat of being burnt down over weekends, the Commissioners would enter into dialogue to prevent it from happening. These interventions do not form part of the targets in the APP.

Prof Majola said the National School of Government was approached to facilitate the strategic plan in order to fix the APP. In consultation with the AG, a review of the APP will be done in February 2024 as part of the actions to improve performance. Consequence management is being implemented and capacity has been improved to turn the ship around.

Mr Dyanti requested that the Commission submit in writing the rescue plan and the suggestions to improve the APP. He wanted both documents to include the role assigned to the commissioners. He said administration and the work of the commissioners cannot be separated because the staff is supported by the commissioners. Accountability is the responsibility of the commissioners. Intervention was needed in terms of reporting by the Commission. He asked for a detailed plan of matters in control of the Commission but which are not included in the APP.

The Chairperson agreed with Mr Dyanti that the Secretariat is a support function of the Commissioners. The Committee appreciated the work of the Commission and can only make a judgment based on what is reported. A way must be found to report on issues that are not included in the APP. What is not reported, is not done. The report reflects performance outcomes of 50% and the inability of the Commission to do proper oversight over the administrative function. Continuously using COVID-19 as a reason for not achieving targets was indicative of weak oversight. In the previous year, the Committee requested the recruitment plan and the list of the departments that were not cooperating, but the information was not provided. The Committee was therefore unable to engage the Minister and the provinces. He found it unusual that the Commission was presenting a turnaround strategy at the end of its term when it was supposed to reflect on the work of the past term. He questioned why the SAP system was not bought four years ago and other actions were not implemented three years ago. He was disappointed in the performance outcome of 49% considering that other departments achieved outcomes of more than 80%. The outcome could even be worse based on the AG’s finding about the reliability of information. He called on the Commission to submit the rescue plan. The Committee was leaving the Sixth Parliament with a heavy heart but was encouraged by the glimmer of hope with the appointment of the new CEO. The Committee will submit in the Legacy Report that the institution was in need of serious help. He expressed sadness about the report that was presented by the Commission.

Prof Majola thanked the Committee for the guidance over the past seven years. He enquired about the timeframe for submission of the rescue plan and other information.

The Chairperson granted the Commission until the end of October 2023 to submit the requested information.

Shortlisting of SAHRC candidates
The Committee Secretary confirmed that 98 candidates were available after the withdrawals had been taken into account.

The Chairperson reminded Members that nominations should be based on the adopted qualifying criteria. The SAHRC Act further elaborates on the criteria. It was decided to shortlist 14 candidates to be considered for two part-time and four full-time vacancies. But the Committee settled on the names of the following 13 candidates:

Proft T Mandlinkosi
Ms S Makoasha
Adv A Gaum
Mr J Sibanyoni
Prof B Majola
Rev C Nissen
Ms Z Nzo
Mr K Teele
Ms E Kwinana
Mr W Boshoff
Mr G Son
Mr A Gungubele; and
Mr V Seymour.

The nominations of Ms S Makoasha by Ms Ramolobeng, and of Ms Z Nzo and Mr Teele by Ms Maseko-Jele were motivated based on their involvement in organisations working on issues of GBV and equality for people living with disabilities.

The Chairperson raised concerns about their motivations. He said nominations should not be based on the representation of organisations but on individuals meeting the qualifying criteria. If selected as Members of the Commission, the candidates would have to represent all communities and not only their constituencies. Screening of the shortlisted candidates will be done over the next two weeks. Interviews would follow after the qualifications of the shortlisted candidates had been verified. He was concerned about the small number of female candidates considering the seriousness of the gender equality issue. He requested Members to review the list for the name of one more female candidate but unfortunately, no further names were added.

Consideration of Judicial Letters
The Chairperson stated that the letters from Judges Motata and Hlophe, and from Chief Justice Zondo had been circulated. He asked for input from Members on any matters related to the cases involving the two judges to which written responses from the JSC should be required. This process was to replace the briefing that was scheduled for Tuesday, 24 October 2023.

Mr Dyanti noted an overlap of some of the issues in the letters. The Committee had planned for the matters of Judges Motata and Hlophe to be finalised when Parliament rises in December 2023. The Chief Justice did not seem keen to send representatives to brief the Committee but due to the tight deadline, the matter would not be pursued. Judge Hlophe seemed to be disputing the decisions of the Tribunal but the Committee should stick to the evidence in the report. He suggested that the Chief Justice be requested to respond to the disputed issues raised by Judge Hlophe. The submission by Dr Loots on the Sutherland matter could be of assistance in this regard.

Mr Horn noted that both judges had raised issues. Judge Motata requested an extension of the deadline while Judge Hlophe requested the Committee to embark on an investigation of the JSC. The latter request should be resisted because it was not within the authority of the Committee. He should be referred to the courts which is the appropriate forum. The Committee should stick to the roadmap and request the Chief Justice to respond to the matter. It was unacceptable that the review application was not brought to the courts, given that both matters had been in the public domain for a long time.

Ms Maseko-Jele agreed with her colleagues on the two matters, particularly in the Judge Motata matter.

The Chairperson requested that matters be dealt with in a consequential manner. He first wanted to discuss the impact on the programme on Tuesday, 24 October 2023, when the Chief Justice was supposed to engage the Committee. He proposed that Parliamentary Legal Services (PLS) brief the Committee on each of the cases to prevent the process from being stalled.

Dr Barbara Loots, Senior Legal Advisor, Constitutional and Legal Services Office, asked if an oral opinion on the outcomes of the cases would be in order because the turnaround time of seven days for a written submission would delay the process.

Mr Dyanti said it would not be a problem, but a written submission thereafter would be needed for the purpose of record keeping.

The Chairperson asked for the Members' opinion on Judge Motata’s request for an extension until 30 November 2023.

Ms Maseko-Jele suggested granting a two-week extension to prevent it being used as an excuse not to respond. An extension until 30 November would be problematic.

Mr Horn said the time used to draft the extension letter could have been spent to settle the Committee’s request. It seemed to be an attempt to delay the matter and place Parliament under pressure to finalise the issue. He agreed with the two-week extension and asked that the discomfort with the request should be placed on record.

Mr Nqola said the Committee needed to play a balancing act between not engaging in an open-ended process with the reasonableness of the request. He agreed to grant 15 November 2023 as the deadline.

The Chairperson said Judge Hlophe submitted a lengthy letter with annexures in which he was taking issue with the matter of judicial fact and raised the issue of investigating some of the JSC decisions. He proposed that Dr Loots be requested to identify issues in the letter that the Chief Justice needed to attend to. He stated that anybody who would want the Committee to delay the process would have to interdict the process.

Mr Horn agreed that the Committee should ask for guidance as part of the research by the PLS, given the history of the matter.

The Chairperson confirmed that Dr Loots would brief the Committee on the two issues and submit documents after the briefing. Firstly, a detailed response was needed on the issues raised by Judge Hlophe and guidance on the issue of judicial fact. Secondly, a summary of the South Gauteng High Court judgement because most of the issues raised by Judge Hlophe are contained in the judgment.

Mr Dyanti said there was no legal impediment to proceed with the work of the Committee. The JSC processes were in need of fixing and a review of the processes should form part of the Legacy Report.

The Chairperson agreed that Parliament should review the JSC Act as part of the overall legislative amendments. The Committee was expecting the process to be simple which proved not to be the case. The Committee is not a review or an appeals body and might be in breach of the separation of powers principle if tempted to act as a review or an appeals body. The matter would proceed on Tuesday, 24 October 2023 with a PLS briefing. He asked how much time the PLS would need for an opinion on the Judge Hlophe matter.

Dr Loots said it would depend on the clarifying questions from Members, but she would aim to have it done by next Tuesday.

Divorce Amendment Bill

The Chairperson said the Committee would not be able to deal with the Divorce Bill this week.

DOJ&CD Responses to Cannabis for Private Purposes Bill comments
Mr Makhubela Mokulubete, State Law Advisor, DOJ&CD, highlighted the key issues for the Committee to consider with respect to the Department’s responses to public comments on Clause 3 of the Cannabis for Private Use Bill. Clause 3 deals with the protection of children in the cultivation, possession, and dealing of cannabis.

The Committee was satisfied with the responses and requested the Department to include the suggestions in the draft Bill for consideration.

Dr Loots requested her colleagues from the Department to have a discussion before the next meeting with the Committee on Friday, 20 October 2023.

The Chairperson encouraged the Department and Legal Services to start working together and to speed up the process because the Committee needed to conclude the Bill in this term.

The meeting was adjourned.