Day 2 of South African Human Rights Commission Interviews

Meeting report

The Chairperson began each interview by asking the candidate to provide a brief background about themselves and the motivation for their application and if applying to be full-time or part-time Commissioner. At the end of the interview, he informed the candidate that the Committee is awaiting security screening results and if there are any issues this will be communicated to the candidate. He also asked if the interview was fair.

Ms Nomahlubi Kwinana Interview
Mr S Swart (ACDP) said Ms Mkwinana had an impressive CV. As an acting judge, would appointment as a Commissioner not impact on her aspiration to become a full-time judge?

Mr Swart said that given the high levels of poverty, inequality, widespread unemployment, and challenges with access to basic services like load shedding and water, how would she approach and prioritise the different areas, given the limited budget of the Commission.

Mr Swart said one of the challenges the Commission faces is the lack of implementation of its remedial action or report recommendations. If appointed, how would she address that and what role can Parliament and the courts play in this?

Mr Swart asked in which court she was currently acting judge and the challenges experienced in the court.

Ms W Newhoudt-Druchen (ANC) asked what her areas of focus would be if appointed as a Commissioner.

Ms Newhoudt-Druchen said that the candidate would have read and seen how the Committee is concerned about the declining performance of the SAHRC. If appointed as a Commissioner, what improvements would she like to see?

Ms Newhoudt-Druchen asked if she had ever worked with people with disabilities in her years of experience.

Ms N Maseko-Jele (ANC) noted that the candidate said it would not be a problem as acting judge to be appointed Commissioner. She asked how she would juggle the two.

Ms Maseko-Jele said the Commission has not been performing to the level expected by the public in resolving matters. Is it relevant to keep the Commission?

Ms Maseko-Jele asked what skills she would bring to assist with the performance of the Commission.

Ms A Ramolebeng (ANC) said that her CV indicates that she was from Tshwane, Mapopane, Block U and that her focus area had been Hammanskraal. What had she done about human rights issues affecting those areas, other than issues of pit toilets and water scarcity?

Ms Ramolebeng said in those areas there is a large number youth aged 16 to 35 who are addicted to drugs such as crystal and nyaope. What societal role has she played in assisting and educating those kids influenced by those drugs and their parents?

Adv G Breytenbach (DA) said that Ms Kwinana had been an acting judge for some time and had many acting stints. Has she ever been interviewed for a full-time position for the bench? If not, why?

Adv Breytenbach asked if Ms Kwinana felt she had not gained sufficient experience for the bench of the high court. She was trying to ascertain if, in the next five years, there was a chance of her applying to be a judge.

Adv Breytenbach asked if she was aware that the Commission despite its many shortcomings operates with a seriously constrained budget, which has an impact on its effectiveness. It is unlikely that it will be properly resourced financially. How would she go about improving performance bearing in mind that in all probability the budget will be the same?

Mr W Horn (DA) asked for an example of how she contributed to progressive legal interpretations of human rights issues in South Africa, and if she has issued judgments related to human rights.

Mr Horn noted that the candidate was aware that there are focus areas. He asked if she would agree that none of the current Commissioners deal with gender equality issues.

Mr Horn referred to Chapter Nine of the Constitution and asked her to name all the human rights bodies South Africa has.

If the Committee appoints her as a candidate who focuses on gender, how do we justify the existence of the Commission for Gender Equality?

Ms B Mkhwebane (EFF) noted the candidate’s passion for gender-based violence issues and asked her if woman abuse only included violence and killing? What about other aspects?

She asked what the South African Women Lawyers Association (SAWLA) has done to deal with the women in the legal profession who are abused emotionally and otherwise by the South African media. Has it issued a statement on that?

In dealing with the abuse of state resources in Hammanskraal, has SAWLA issued a statement or done pro bono work to ensure that the Department is held accountable?

Mr Q Dyantyi (ANC) asked about the last time she acted as a judge, if she had any reserved judgments and for how long the judgment was reserved. Had any of her judgments been challenged?

Section 181 of the Constitution deals with the establishment and governing principles for all the institutions supporting democracy. Can you share one of those principles?

What is the distinction between section 181(2) and (5). The former says these institutions are accountable to the Constitution and law. The latter says they are accountable to the National Assembly.

Mr Dyantyi asked how the candidate would deal with an ordinary resident approaching her as they had applied for a march in the City of Cape Town. This was agreed to but the march was not allowed to go where they wanted to go and therefore they cried discrimination. How would you handle that?

Mr Engelbrecht (DA) asked if the allocated time could be extended to allow more fruitful engagement with the candidates.

Ms Ramolebeng agreed. An indication should be given which candidates were returning and which are new so Members know how to navigate time when engaging the candidates.

The Chairperson replied that Members must bear in mind that time must be allocated equally among the candidates. People outside cannot pick up variances in the allocated time for candidates; it would make it unfair.

Adv Breytenbach said Members cannot discriminate against candidates; they must all be treated equally – parity is important. We are all sensible adults; we can craft our questions to deal with everything. We must craft our questions amongst ourselves to cover our bases. Of course, the questions you ask the incumbents would be different from the ones asked of person applying for the first time.

Mr Dyantyi noted he had no problem in asking incumbents questions about why they performed the way they did. He agreed with the Chairperson and Adv Breytenbach as the interviews could be taken to court if we allow time extensions for some but not others.

Mr Engelbrecht welcomed the views of the Members.

The Chairperson indicated that those who are returning were Mr Andrew Nissen, Mr Bongani Majola, the current chairperson, Mr Jonas Sibanyoni who is a part-time Commissioner and Adv Andre Gaum who is a full-time Commissioner.

Mr Andrew Christoffel Nissen Interview
Mr Swart disclosed that he knew the candidate even before his time as a Commissioner.

Mr Swart said that the Committee was aware of the severe challenges the Commission is facing now in the implementation of programmes and reaching targets. There is a multitude of reasons for that but the main reason might be financial constraints. Should you be appointed as a permanent Commissioner, how would you address those deficiencies?

One of the challenges is that many of the targets set in the Annual Performance Plan are not met by the Commission, which results in audit disclaimers and does not paint a good picture for the Commission. How would you formulate the Annual Performance Plan to avoid those audit findings?

Mr Swart said he was aware of the incredible work the candidate does in communities and with OPCAT and the United Nations. If he were a permanent Commissioner how would he develop the important work that he does?

Ms Newhoudt-Druchen also declared that she knew Reverend Nissen. She saw in his written submission reference to the Department of Social Development (DSD). She believed that the Human Rights Commission needs to assist DSD in developing its main policies. If appointed Commissioner, what will you do that has not been done? What could be done differently and better?

She asked if he has ever assisted people with disabilities and how he could bring their needs to the table.

Ms Maseko-Jele said the candidate has been a part-time Commissioner for almost seven years. He noted the issue that he was a part-time Commissioner working like a full-time Commissioner. What still needed to be done because the impression given now was not the same as the impression people have of the Commission. She asked if he was aware that there were challenges and complaints about relations within the Commission.

Mr Horn said one of the issues the Committee have mentioned to the current cohort of Commissioners is the relatively slow pace the Commission deals with reports and specific complaints. If he is reappointed, what practical steps does he believe would need to be implemented by the new group of Commissioners to fix that?

In the run-up to the National Elections next year, many in civil society are of the view that there will be a repeat of the July 2021 unrest and civil disobedience in KZN and Gauteng. How can we appoint a set of Commissioners who will be responsible and have self-imposed deadlines to finalise reports to assist the country on such matters?

Adv Breytenbach asked if the candidate would agree that the SARHC has not distinguished itself in the past five years. Secondly, since the Commission is financially constrained, that position is unlikely to change. If he is reappointed as Commissioner, can he provide four tangible items to improve the performance of the Commission?

Thirdly, she said that the pro-poor budget is a DA concept, but she was happy that he adopted it. However, bearing in mind his four points, what has prevented him from implementing them up to now?

Mr Engelbrecht said that should he be appointed as a full-time Commissioner, given all the other roles he is involved in, where will be his focus amongst all his responsibilities? Secondly, he noted the Commission’s poor performance in the previous years and in its annual reports the SAHRC often tells the Committee that one of the biggest challenges is the failure of relevant parties to give effect to its recommendations. He noted the High Court judgement that said that none of the SAHRC directives are binding. The Commission now sits with a legitimacy problem in the eyes of the public because the media is negative although there is some good done. What would he change about the SAHRC as the public perception is not very positive at this stage?

Ms Mkhwebane said that the candidate speaks a lot about the work he is doing. His CV says he has excellent management skills, strong leadership skills, and excellent strategic planning. The failure of the SAHRC to meet its targets was already mentioned. With this expertise, how come the Commission has not met its annual targets? Secondly, in the past seven years, did you meet your targets?

Thirdly, is the candidate participating or monitoring the complaints process? Is the Commission compliant with gazetting? She referred to the delays in issuing reports such as the Eastern Cape matter of the 120 children who died of malnutrition where the report was only just issued. One death is too many and the Commission delayed significantly.

Ms Ramolebeng asked for the candidate's views on the criminalisation of sex work. Secondly, his CV spoke about his experience dealing with petty offence issues; but what is your role concerning the over-crowding in South African prisons versus the human rights of the offenders? Thirdly, the country is getting young, and we are seeing younger people coming into the space. How do you intend to adapt in increasing the visibility of the SARHC?

Mr Dyantyi declared that he knew Mr Nissen. They have worked together, and he has always been his leader, except for today. Firstly, you have tabled your journey and part of that journey is as the leader of the ANC in the province. With that in mind, how are you going to ensure that you are independent, impartial and operate with integrity? Share with the Committee how you did this when a water canon was used on Social Development beneficiaries in Bellville. He was interested to know what motivated him to drive the issue the way he did.

If appointed, how are you going to deal with the disconnect between the work done and what is reported? That disconnect creates a disservice for the Commission and he wanted to know how he would address that disconnect.

The Chairperson asked Mr Nissen to provide the names of the people who always remind him that he is not a full-time but a part-time Commissioner.

Mr Nissen felt that he had already made his contribution and thus shied away from answering.

The Chairperson indicated that it was important for the Committee to know. Whether Commissioners are part or full-time, they need to be respected. This is not something that can be brushed over. We have dealt with the toxic environment that was reported. Now, if this issue comes to the Committee, it cannot pretend as if it did not hear this.

Mr Nissen replied that he represented the Commission and would like not to say.

Mr Grant Son Interview
Ms Newhoudt-Druchen referred to his written response to the question about key human rights challenges. If appointed, what would be his preferred areas of focus?

Secondly, the Commission’s performance had been declining. If appointed, what improvement would he make to assist the work of the Commission? Thirdly, in his years of experience, has he ever assisted people with disabilities or worked within the disabled community? If appointed, how would he bring the needs of this marginalised and vulnerable group to the forefront?

Mr Dyantyi asked the candidate his understanding of a “fit and proper” Commissioner. Is he fit and proper and why? Secondly, a group of women apply for a march in the City of Johannesburg, and it is approved. However, they are not happy because they are not allowed to march in certain streets. They approached him as a Commissioner to say this was discriminatory. How would he assist that group of women? Lastly, what is his understanding of Section 36 of the Constitution on the limitation of rights?

Ms Maseko-Jele asked what motivated the candidate to reapply for the position of Commissioner.

Secondly, the Commission seemed to not exist as it does not have teeth. What is the candidate going to bring to the Commission to provide a different perspective on how the Commission is perceived?

Lastly, she asked Mr Sonn to name the Chapter Nine bodies and how they relate to the Human Rights Commission.

Mr Swart asked the candidate what his present employment was. He asked if the“I am Black Gold” a company that he was running. If appointed as Commissioner, how would his business be impacted? He asked if he had legal qualifications and practice of human rights law.

Mr Swart noted that he had extensive business experience with an impressive CV and he felt that he would be best suited for the CEO position at the Human Rights Commission.

What could be a real attribute is the financial constraints the Commission is operating under and his extensive experience in business and turning businesses around as alluded to in the CV. He asked if he could assist the Commission in operating under a very constrained financial situation with vacancies in key positions to achieve what the Commission has set out to do in its mandate.

He asked if he had completed his doctorate or if he was still busy with it. Lastly, he noticed the engineering consulting company and did a lot of work for Eskom from 2012 to 2018 during the time of State Capture. He asked if the candidate was aware of any irregularities at that time as highlighted by the Zondo Commission.

Mr Horn asked the candidate about his thoughts on SAHRC investigations into systemic issues and what the highlight of the Commission's output was in the last few years.

Secondly, he asked if he could name any issue that he thought the Commission had dealt with efficiently. Thirdly, on the Bill of Rights, what should be the focus of the Commission to be effective and build public confidence in the ability of the SAHRC to effect change?

Adv Breytenbach asked which qualifications he possessed and from which institutions. She also wanted to know if the listed qualifications were completed or not. She noted that on social media, the candidate was referred to as Dr Son and asked on what basis. She asked if he was a doctor. Why did the candidate refer to himself in the third person in his CV?

Mr Engelbrecht said that Members were here to make an informed and responsible decision based on information provided to Members and information they had researched. He found the questionnaire the candidate filled out rather scammed. The candidate answered that with his experience in different sectors including mining and environmental law, he gained a deep understanding of how certain practices affect human rights. He wrote that his academic qualifications and doctorate research following rigorous peer review and his publications equipped him with the skills and knowledge needed to promote and protect human rights. He studied and published articles on risk management at Eskom Generation and wrote a Ph.D. thesis on water management in Norway. Thus, he was curious how the candidate’s qualifications related to his deeper understanding of human rights in the context of the South African Constitution. This was in a legal sense rather than understanding human rights in general. He was not convinced that his background, experience, and qualifications made him suitable as a Human Rights Commissioner.

He applied to be a full-time Commissioner. However, given his experience, he asked if the candidate had lost interest in business and why he would leave something he had worked his entire life to build.

Ms Mkhwebane said the Commission’s mandate is to monitor the progressive realisation of socio-economic rights by the state such as housing, water, food, and health. The Commission has not been able to carry out that task. She asked the candidate to provide two solutions that could address that.

Secondly, the Commission’s current budget is R209 million and it is serving over 60 million South Africans with vast challenges still occurring 30 years after democracy. The current government is failing to achieve this. However, given the minimal resources, with his expertise, how would he ensure that he maximises the performance of the institution?

Thirdly, how can technology be used to manage the services of the Human Rights Commission efficiently and to empower the people and communities, especially about visibility because the SAHRC is not visible at all?

On the failure by government and the executive to implement the recommendations and remedial actions of the Commission, what should Parliament be doing to hold the executive to account?

Ms Ramolobeng asked the candidate what boards he had served on before. What would be different between the boards he had served on and the Human Rights Commission? Would he be willing to withdraw from the other boards if the offer was good?

She wanted to know what interests him to serve on the Human Rights Commission. Lastly, seeing that he came from Eldorado Park and Westbury, which were plagued by substance abuse and gangsterism, what was his role in advocating against these activities and crime in those communities?

Prof Bongani Majola Interview
Mr Swart said that the candidate had served on the Commission for the last seven years and he would raise the Committee concerns when the Commission appeared before the Committee about its annual report and targets. In Prof Majola's replies to the questionnaire, he indicated the things he would do. However, the concern is why those listed issues were not addressed over the past seven years. Secondly, what has been the impact of budgetary constraints on meeting the targets?

Mr Swart noted that one of the major impediments seemed to be the vacancy rate. The new CEO was appointed, but since the annual reporting, what has been done to address the vacancy rate at management and staff levels?

Ms Newhoudt-Druchen said she was pleased that the candidate mentioned mental health, as this was not discussed enough. Due to COVID-19, there was a rise in mental illnesses. If reappointed, what would he do better to ensure there was access to mental health services?

Secondly, how would he bring the needs of the disabled community to the forefront?

Ms Maseko-Jele said his CV confirmed that he was almost seven years at the Commission. There are a lot of matters that still need to be done by Commissioners, as noted. The mental health case was the only case the candidate mentioned in his questionnaire reply as an example. She asked if there were other cases that he had dealt with.

Secondly, is the public criticism of the Commission and its performance misplaced? Lastly, there is a problem within the Commission involving relationships and staff complaints. She asked him to present his view on this. Has he dealt with those issues and what are the relationships like now?

Mr Horn said that in life, somebody has to bear final responsibility. Would it be unfair of the Committee to place the ultimate responsibility on the candidate for the regression in the Human Rights Commission's performance during his term as chairperson?

Secondly, as a full-time Commissioner, how many of the 22 working days per month does he and the other Commissioners typically spend at the head office, pre- and post COVID-19?

Mr Engelbrecht said that there exists a negative public perception and this perception is important because it can be linked to public confidence and the legitimacy of the organisation. The Mbombela High Court decision on SAHRC findings and recommendations will be appealed. It declined to grant a “blanket order” that all directives issued by the South African Human Rights Commission (SAHRC) are automatically binding. This harms the organisation. The Commission needs to prevent instances like this otherwise it poses a legitimacy risk. He noted the SAHRC engagement in Mogale City about vagrants that made everyone in the town very angry. What is the candidate going to do differently if given a second chance?

Mr Dyantyi asked how the candidate would fix what was found not working if reappointed. He asked him to mention three things he can do practically to fix the organisation. On the labour union matter, the candidate made the point that people run to the Portfolio Committee. At the 8 November meeting with the union, this Committee decided that what was presented be sent back to the CEO and Commissioners. He asked if he is aware of this and what he is doing about it.

Lastly, what will he do if reappointed about the outcry about the Commission not having proper enforcement measures? In terms of the Constitution, there is a lot the Commission can do to have teeth.

Ms Mkhwebane said the candidate has been at the Commission for seven years and asked which targets he failed to achieve. Has the SAHRC complaints handling process been implemented since gazetting? As the custodian of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), why did the Commission choose not to institute a process against the former CEO for hate speech or racial discrimination?

On systemic racism and the delays in issuing the July 2021 Unrest Report, there are allegations that the Commission is delaying this due to political pressure.

On the “labour union” matter, irrespective of its recognition or not, Ms Mkhwebane asked if he did not think its employees were a strategic asset and should be free to raise their concerns.

She noted that even if the former CEO has resigned, the Commission should have pursued the matter because she contravened PEPUDA.

Mr Ben Sibanyoni Interview
The Chairperson declared that he knew the candidate as they worked together in the Portfolio Committee on Justice and Constitutional Development before it was Justice and Correctional Services for years.

Ms Newhoudt-Druchen declared that she also knew the candidate as a former Member of Parliament. She asked if he thought there was enough public awareness about the Commission.

If he were reappointed, would he continue with his current focus areas? The disabled community is still largely marginalised in South Africa. How can he bring these issues to the forefront?

Ms Maseko-Jele said that looking at his experience and the things he has done, what would he say was the highlight of his work within the AmaNdebele community? She asked for some examples of cases that he has dealt with and resolved. The public perception of the Commission is that it is not doing anything for the public, especially on issues of racism where certain people were recorded saying blacks must be killed etc. In the past seven years, what has he done as a Commissioner? The candidate was nominated to return and she asked for his experience of the performance of the Commission.

Mr Horn asked the candidate in his assessment of the Commission's role, functions and duties, what would he describe as successes achieved by the Commission. If reappointed, how would he prevent the reputation of the Commission from being damaged by delays?

Mr Horn commented that some dogs have a harsher bark than bite and the Committee would have to consider if that is not the issue with the current cohort of Commissioners.

Adv Breytenbach said that she noticed that he spends a lot of time working with the youth. She asked how he proposed to use the Commission to address the current challenges experienced by the youth.

Adv Breytenbach said that the Commission operates under severe financial constraints and that will not change soon. She asked what new and innovative approaches one could have to do the job with limited financial resources.

Mr Engelbrecht said that the candidate is 71 years old and possesses extensive experience in this field from serving on the Amnesty Committee of the TRC, two terms in Parliament in this Committee and the last seven years at the Commission. He asked if he had the strength and the will to serve another term. If so, whether he intends to transfer some of his knowledge to the younger generation that could take the Commission forward.

Ms Ramolebeng noted that the candidate had done two years of a Master of Laws degree and he was left with a mini-dissertation, and asked if he had managed to complete it. She wanted to know how he handled complaints that were politically sensitive or controversial bearing in mind his past parliamentary stint which makes it clear to which party he belonged.

Ms Ramolebeng said that the country is getting younger and that there is an influx of a generation that is eager to come in and lead. How would he adapt to the younger generation taking the helm in increasing visibility of the Human Rights Commission and making it attractive to a younger generation? Lastly, she asked if KwaDukuza was in Gauteng or Mpumalanga.

Ms Mkhwebane declared that she knew the candidate but not closely. She asked the candidate about the delay in finalising the complaint about the Waterval white farmer who is terrorising the community, beating them up and abducting them. Those who speak up are assaulted and kidnapped. They had complained to the Commission and she asked if he was aware of that complaint. As a Commissioner, how did he monitor and oversee the complaints handling process to ensure that the staff were responding to the complaint? She then suggested he seek feedback because nothing had been done about this issue.

On systemic racism within the institution, she asked if he was aware and what he had done about it. Lastly, on forum shopping, what is the candidate doing to ensure that all Chapter Nine institutions are engaging each other and utilising resources in ways to close the financial gap for the Commission?

Ms Mkhwebane asked for the candidate’s view of the SAHRC v AgroData case and the judgment's impact on the mandate of the Commission.

Prof Tshepo Madlingozi Interview
Ms Ramolebeng asked the candidate to indicate the current human rights challenges South Africa faces that he is familiar with. If he were appointed, what improvements could be made including to the Commission's visibility? She asked why the candidate thought he was the right person for the position.

If appointed, the candidate would have to champion some areas outside municipalities and she asked which key areas he would focus on.

Ms Newhoudt-Druchen noted that the candidate was a co-author of a journal on human rights and asked if it was a monthly or once-off journal. She asked if he had ever assisted persons with disabilities or worked with the disabled community. As it was a marginalised community, how would he bring its concerns to the forefront?

Mr Horn said Section 181(2) of the Constitution states that Chapter Nine institutions, including the Commission, are subject to the Constitution and asked what the candidate understood by that. Attached to that is obedience to and application of the Constitution as it stands. Considering the candidate's stance on the Constitution, he asked if he was the correct person to serve.

Mr Horn said that his academic writing seems to be part of a group that deems the Constitution to be a new apartheid constitution. In 2017, the candidate wrote that this concept of transformative constitutionalism is actively preventing people from obtaining true freedom. In another publication, he scathing described the Constitution as a Eurocentric liberal document not serving the people well. If this is his stance on the Constitution, would he be able to perform his duties as a Commissioner and apply the Constitution as stands instead of motivating for its change?

The Chairperson asked if the candidate thought interference was only from the executive.

Adv Breytenbach asked the candidate about his current position; his membership in a variety of organisations and on boards and where he would find the time for the position he was applying for. She asked if he was willing to give up his position at the University of Witwatersrand.

Adv Breytenbach asked him if the Commission had lived up to its potential and, if not, why he thought so.

Mr Engelbrecht said his line of questioning was about the candidate’s ability to be unbiased as a Commissioner as he would have to investigate matters he may not agree with. In terms of his academic writing, one assumes that the candidate was not a fan of the South African Constitution but how would he investigate a sensitive case involving racism without demonstrating bias.

Ms Mkhwebane welcomed the responses criticising the Constitution if it is not serving every citizen. Some people were treated as second-class citizens whereas they should be protected by the Constitution; thus the Constitution should be criticised.

Her challenge with the candidate was his membership of CASAC from 2013 to 2021. This is because CASAC presents itself to be the Council for the Advancement of the South African Constitution. However, it failed to lodge complaints with the Public Protector or the SAHRC. One would like to see CASAC fighting for people instead of fighting institutions like the Office of the Public Protector.

On the Ingonyama Trust, this is where everyone is contributing for the advancement of their cultural space and using their eurocentric attitude to destabilise that community.

As for the failure to implement the remedial actions of the Commission, what did the candidate think should be done? What support must Parliament provide to ensure that the Commission’s recommendations are implemented by the executive who reports to Parliament.

Ms Mkhwebane said the delay of the SAHRC's July 2021 Unrest Report was due to fears of a political backlash, amongst others. She asked what the candidate would do to ensure that the issuing of that report was expedited.

Mr Swart sought clarity on the candidate's areas of focus. How would he balance dismantling homophobia with people who have strong religious views – on the right of religious expression and on sexual orientation? How would he balance his aims with the broader socio-economic rights that are important with a limited budget? He asked about the role of Parliament and the Committee in enforcing the findings of the Commission.

Ms Maseko-Jele asked the candidate if he thought the criticism by the Committee was justified. She asked for his plans to ensure that the racism that has surfaced recently on social media would be attended to by the Commission. What kind of skills does he bring to the Commission? She asked if he thought the Commission had a social cohesion role.

Mr Dyantyi asked the candidate if he believed in the South African Constitution; if the Constitution can be held responsible for holding back the advancement or progress of society; if the Constitution explains or defines the country as it currently exists or if it is visionary. What was one irritation about the Constitution for the candidate?

Adv Andre Gaum Interview
Adv Dyantyi declared that he knew Advocate Gaum. The Committee was looking for "fit and proper" Commissioners, but the Constitution does not define what is a "fit and proper" person. However, there is case law that defines that. He asked if the candidate was aware of such case law, what was his understanding of a fit and proper person; and if he considered himself fit and proper and if so, why.

Adv Dyantyi asked about the difference between the constitutional provisions that speak about the accountability of the Commission to the law and to Parliament. He referred to the Committee’s disappointment in the annual performance of the Commission at the last meeting. If given a second chance, what would he do differently?

The Chairperson declared that he knew Adv Gaum in his previous stint as a Member of Parliament.

Mr Horn commented on the troubling performance of the Commission under the leadership of the current cohort of Commissioners. The candidate chaired the hearings on the July 2021 Riots. Committee members had raised concerns about the delays in issuing the report, and it was still not released. He asked what Members were to make of this. If he were reappointed, what practical steps would he put in place to prevent these delays from reoccurring as it undermined the credibility of the Commission?

Mr Swart declared that he knew Adv Gaum from his time as a Member of Parliament. He asked how he would improve the performance of the Commission given the concerns of the Committee notwithstanding the financial constraints. Did he think there would be an improvement now that a new CEO had been appointed and if it was fair to hold the Commissioners accountable for the poor performance of the Commission?

Ms Newhoudt-Druchen indicated that she knew Adv Gaum. It has been 16 years since Parliament ratified the UN Convention on the Rights of People Living with Disabilities. If reappointed to the Commission, how would he ensure that the department staff at local and provincial levels of government implement its articles? She asked about the outcome of the Commission's hearings on various school protests across the country, especially related to people with disabilities.

Ms Maseko-Jele asked the candidate if he could confirm if there is a disjuncture between planning and implementation at the Commission and his plans to address that. The Committee has not been getting good results from the Commission over these past years. One would assume that something would have been done about it since the current cohort of Commissioners is vastly experienced.

Mr Engelbrecht asked if the candidate would avoid disputed findings. Did the candidate think there were measures available to the Commission in existing legislation to give effect to Section 184(2)(b) and (4) of the Constitution that has not been utilised but can be?

Ms Mkhwebane asked who the Commissioners meet first when a complaint is lodged – is it the complainant or the accused? There were racism complaints against Etzebeth, and he met with him before meeting the complainant. Thirdly, she asked if he thought the legal committee should be centralised or decentralised.

She asked if his areas of focus were racism and education and if he had visited all the provinces during the seven years he had been a Commissioner. She asked if Commissioners should not be visible on the ground to enhance access to and visibility of the Commission.

Ms Ramolebeng asked the candidate about his role in the July 2021 unrest aftermath; if follow-ups were made on the implementation of recommendations by institutions; if the panel was given enough support by government to deliver on what is required. In his analysis, what did he think needed to be done to ensure there was no repeat of the July 2021 unrest?

Judge Hlophe / Judge Motata matters
The Chairperson announced that Members would have received a letter from Judge Hlophe, which is about 244 pages. Members need to go through the letter so the Committee can deliberate on it. Legal advice has been sought, and the letter would be formally presented to the Committee.

The Committee was also waiting for a response from the Judicial Service Commission (JSC) on issues raised by Judge Motata. The deadline is 20 November, and Members would be appraised of that JSC response.

The meeting was adjourned.