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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 April 2005
JUSTICE BUDGET: PUBLIC PROTECTOR & SA HUMAN RIGHTS COMMISSION BRIEFINGS
Documents handed out:
Office of the Public Protector submission PowerPoint Presentation
Office of the Public Protector: Five Year Strategic and Performance Plan
Office of the Public Protector: Corporate Strategy and Business Plan
Office of the Public Protector: Annual Report: Part 1
Office of the Public Protector: Annual Report: Part 2
Opening remarks by Chairperson of South African Human Rights Commission (SAHRC)
SA Human Rights Commission Report on the Inquiry into the Human Rights Violations in the Khomani San Community (see SAHRC website)
SAHRC Report on the Open Hearings on Road Closures/ Boom gates (see SAHRC website)
SAHRC Report on Xenophobia Hearings
SAHRC PowerPoint presentation
SAHRC submission: Successes and challenges 2004-05
The Public Protector’s Office delegation began their briefing by noting their achievements in 2004/05. These included: the establishment of a new provincial office in Gauteng; the appointment of a communications officer, improved functioning of the Office’s human resources, and an expanded outreach programme. The Office received 22 175 cases in 2004/05 and had finalised 19 379 of these cases. The Office’s strategic objectives for 2005/06 were then outlined. These included: establishing two new regional offices; establishing additional rural offices in Kwa-Zulu/Natal, Limpopo and the Eastern Cape; initiating public outreach projects at public holiday celebrations; and expanding cooperation with other Chapter Nine institutions.
From there, the delegation discussed the Office’s 2005/06 budget. The overall budget would be approximately R 55 million. A review of the 2004/05 budget was provided. Finally, the delegation outlined some of the challenges that the Office faced. These included filling the position of Deputy Public Protector.
The ensuing discussion covered the following topics: the Office’s 2005/06 Business Plan; the appointment of a Deputy Public Protector; the Office’s outreach programme; its human resource policies; the launch of its website; its new computerised case management system; its case productivity targets for 2005/06; how it finalised cases; its collaboration with other government departments and Chapter Nine institutions; its relationship with municipal ombudsmen; and the ‘own initiative’ cases that it conducted.
The South African Human Rights Commission briefed the Committee on its strategic plan. It outlined its objectives and challenges it was facing. Some of the inquiries and visits it had conducted included the Khomani San and Boom gates inquiries and hearings on Xenophobia. Some of the strategic interventions made included the roundtable on the property clause and the equality indaba. The Commission was in the process of completing a 10-year review on human rights and democracy that would be launched in June.
Some of the issues that emerged during the discussion were:
- What informed the decision on the subject of public hearings?
- Was the Equality Review Committee still relevant?
- Was the Commission succeeding in establishing a human rights culture?
- Why was the Commission needing more Commissioners?
- What had prompted the roundtable on the property clause?
- What had informed their decision on where to open offices?
Office of the Public Protector submission
Adv Lawrence Mushwana (The Public Protector) explained that due to last minute alterations, revised copies of the presentation documents would be provided at a later stage. The Office was in the process of formulating its operational plan. It had drafted a strategic plan for 2005 to 2010, which had been submitted to Treasury. This would soon be finalised and would include an updated organogram.
Adv Mushwana and Mr Ashley Rampersadh (Director: Corporate Affairs: Public Protector) outlined the Office’s achievements in 2004/05. To a large extent, the Office had met the objectives of its 2004/05 strategic plan. It had achieved success in the execution of its constitutional mandate. In 2004/05 the Office had opened a new provincial office at Constitutional Hill in Gauteng and had relocated its head office as the old office had been inadequate. The new premises would function as a temporary head office until a new head office, located on the outskirts of the Pretoria central business district, was built.
In 2004/2005, a communications officer had been appointed in order to develop a communications strategy for the Office. A website had been developed but it still needed to be launched. All of the Public Protector’s offices were operating on a wide area network, which had improved internal and external communications. The Office had planned to implement a computerised case management system, however, there had been delays and the system would only be operational in May 2005. The Office had improved the functioning of its human resource department, with the appointment of a human resource manager. Employment equity targets had been met. A new performance management system had been introduced in 2004/05. Some challenges that the human resource department faced were the training and development of staff, the development of a remuneration policy, and the development of an employee wellness programme.
Mr Rampersadh highlighted that the Office had expanded its public outreach programme. In 2004/05 the Office had received 22 175 cases and had finalised 19 379 of these cases.
Mr A Rampersadh noted that the 2003/04 Auditor-General's report of their financial management had observed that the Office lacked adopted policies for asset management, human resource policies, bank and cash management. In 2004/05 the Office had rectified this by implementing adopted policies on asset management, bank and cash management. To a large extent the policies on human resource had been implemented and would be formally adopted in the near future.
Mr Rampersadh and Ms M Malaku (Chief Financial Officer) highlighted that the Offices’ unauthorized expenditure for 1999/2000 had been authorised by Parliament under Act 26 of 2004. This unauthorised expenditure had amounted to R 640 000 and was the result of an over expenditure due to the Office’s take over of the North West branch in 1999/2000.
Mr Rampersadh briefly outlined the Office’s strategic plan for 2005 to 2010. The Office had identified five strategic goals, which were in the areas of investigation and reporting; corporate services; communication; outreach; and learning organisation.
The objectives that the Public Protector’s Office envisioned achieving in 2005/06 were:
- The Public Protector would open additional regional offices in George and Siyabuswa.
- It would establish additional offices in the rural areas in KwaZulu/Natal, Eastern Cape and Limpopo. It would receive R 10 million from the European Union for these new offices.
- Its outreach programme would undertake initiatives to raise the profile of the Office’s work and inform the public about the Office’s functions. Outreach projects would be presented at public celebrations such as Human Rights Day. The Office had already run a successful outreach initiative at the Rand Show.
-The Office would examine mechanisms to conduct joint investigations with other Chapter Nine institutions. It was already undertaking work with other Chapter Nine institutions around public awareness programmes, the sharing of certain resources and public advocacy programmes.
Mr Rampersadh then discussed 2005/06 budget. The Office had been allocated an overall budget of approximately R 55 million. Of this, R 50.33 million would be assigned to Programme One: Investigations and Administration. A further R 4.79 million would be spent on Programme Two: Public Awareness and Outreach. Two satellite offices would be opened and R 1 million and been allotted to this. Ms Malaku added that in 2004/05 the Office had been allocated R 56 million, and had spent R 54 million. Of this, R 52 million had been spent on Programme One, while R 2.3 million had been spent on Programme Two.
Adv Mushwana noted that the Office had faced certain challenges. These included financial constraints, which impacted on the Office’s capacity. For example, the Office was sometimes unable to recruit the number of staff that it needed, as outlined in its strategic plan. It was uncertain whether Treasury would allow the Office to increase its staff complement budget. The Office had been unable to appoint a Deputy Public Protector, although submissions regarding this issue had been made to Parliament.
The Chairperson asked if the Public Protector’s Office possessed an annual Business Plan for 2005/06. Last year, the Office had not produced one and, as a result, the Committee had been unable to properly assess whether the Office had met its goals. The Committee was due to meet the Public Protector’s Office in October, regarding its annual report and annual Business Plan. This meeting would be aimed at allowing the Committee to assess the Office’s progress in achieving its goals. The Public Protector’s Office, therefore, needed to complete a Business Plan for 2005/06.
Adv Mushwana replied that the Office was busy undertaking its operational plan. The Office would be properly prepared for October and would produce an annual Business Plan for 2005/06.
The Chairperson noted that when the Minister last visited the Committee the issue of the appointment of a Deputy Public Protector had been raised. She asked who was responsible for appointing a Deputy Public Protector, was it Parliament?
Adv Mushwana replied that an ad hoc parliamentary committee would be formed and this committee would be responsible for making the appointment. He added that funds had already been allocated for the position.
The Chairperson asked if the Office was involved in partnerships with government departments, or the Courts, in terms of its outreach project. For example, would the Office be cooperating with government departments to make information available to the public regarding the Public Protector’s contact details? She felt that perhaps all the departments who dealt with the public should have such an initiative.
Adv Mushwana responded that the Office did, to a degree, cooperate with government departments on outreach. For example, many government tenders included a clause stating that any applicant could approach the Public Protector if they believed that the tender process was unfair. This clause included contact details for the Public Protector. Previously it did not have a communications department or strategy. It was only in 2004 that a communications officer was appointed and this person would be responsible for future cooperation, around outreach, with other government departments. Eight new visiting points were going to be established and these would be distributing pamphlets and information to the public. Part of the R10 million from the European Union would be spent on this initiative.
The Chair requested a complete report on the cooperation between the Office and other government entities. She also requested general information on the Office’s advocacy projects appear in the report. She noted that the Auditor-General had raised some concerns about the Office of the Public Protector and asked what these concerns were.
Ms Malaku answered that the Auditor-General was concerned that the Office lacked formal written policies on asset management, cash and bank management and human resource policies. There had been informal procedures but no formal adopted policies. However, formal policies had been adopted in January 2005.
The Chairperson enquired about the Office’s progress in adopting formal written human resource policies.
Mr Rampersadh responded that the Office had adopted six chapters related to human resources. A further four chapters were still outstanding. These would be adopted by the end of May 2005.
The Chairperson enquired when the website would be launched. She asked whether the website would be interactive and whether people would be able to register complaints through the website.
Adv Mushwana replied that he could not provide a concrete date for the launch of the website. It would provide detailed information on the Public Protector’s work and it would be possible to lodge a complaint through the website.
The Chairperson enquired what the Office’s biggest expense was. Was it salaries? She requested a more detailed breakdown of the budget.
Adv Mushwana noted that the Office would submit a comprehensive document on the budget to the Committee, which would provide a detailed breakdown of expenditure.
The Chairperson asked how the computerised case management system would operate and what the Office hoped to achieve with this.
Mr J Jeffrey (ANC) asked if there was anywhere one could access the reports on finalised cases. Would this information be situated on the website?
Adv Mushwana observed that in the past the Office had an ombudsmen case system. This was outdated and could not be updated. The Office had recently formulated a new case management system. This would be launched in May 2005, and would allow one to access and track individual cases. The new case management system would enable the Office to monitor, and reward, the productivity of its staff.
The Chairperson asked whether the Office had set itself case management targets for 2005/06.
Adv Mushwana answered that the Office had set specific targets in its Strategic Plan 2005 to 2010. The operational plans would include targets for specific years. Productivity agreements had been signed with management and staff. This would allow the Office to assess the productivity of its units.
The Chairperson requested copies of the Office’s operational plan, so that an assessment of the Office’s productivity levels could be made before the next meeting in October.
The Chairperson asked for a breakdown of the cases investigated by the Office. How productive had the Office’s investigations been?
Mr P Maloyi (ANC) commented that, without copies, the presentation had been difficult to follow. He asked what the Office meant by "cases finalised". Did it mean these cases had been investigated and completed? He asked if the Office had the capacity to investigate all the cases it received.
Adv Mushwana answered that cases were finalised in different ways. Some cases were finalised through negotiation and reconciliation between the parties involved. Others were finalised through the production of a report, that would either be filed, sent to the Department involved or to Parliament. He acknowledge that perhaps it would be informative for the Office to give a breakdown of the cases finalised, in terms of the above mentioned categories. However, it was difficult to include information on the type of cases investigated in a report. He commented that when one investigated, one had to formulate investigative mechanisms. How one investigated depended on the type and merits of each case. Sometimes capacity was a problem.
Mr Maloyi and Mr J Jeffrey asked about the Office’s cooperation with other Chapter Nine institutions. Imam G Solomon (ANC) asked how the Office ensured that there was not a duplication of duties between itself and other Chapter Nine institutions such as the Human Rights Commission.
Adv Mushwana responded that the Office was collaborating, in various areas, with other Chapter Nine Institutions. Specifically, the Office was involved in opening an Upington office with the Human Rights Commission. The Office had met with the Gender Commission on the matter of child maintenance cases. It collaborated with other Chapter Nine institutions around advocacy.
Adv Mushwana acknowledged that sometimes there was uncertainty regarding the jurisdiction of the different Chapter Nine institutions. For example, some cases were hard to define and they appeared to overlap the different Chapter Nine institutions' sphere of operations. In these cases, a case file would be opened, and it would be established which Chapter Nine institution had jurisdiction over the case. Sometimes public hearings were necessary to establish jurisdiction. This was labour intensive and time consuming.
Mr Jeffrey observed that there was a disparity between the number of cases that were investigated in the different provinces. He asked what the Office was doing to address this situation, especially in the provinces that had high caseloads.
Adv Mushwana conceded that the Office had not realised that there was a major imbalance between the cases registered in the different provinces. What did take place, however, was that when outreach programmes were initiated, there would be an increase in cases in certain areas. For example, the Rand Show outreach led to an increase in cases in Gauteng. The Office would work towards addressing this situation. He added that the Office would be establishing a project to investigate the numerous cases reported around housing issues in the Eastern Cape.
Mr Jeffrey enquired whether the Office was assisting the municipal ombudsmen.
Adv Mushwana replied that there was a working relationship with ombudsmen in Cape Town. It was agreed that the ombudsmen should deal with minor matters. These could be quickly dealt with by the ombudsmen. These working relationships were new but they would be pursued in the future.
Imam G Solomon (ANC) commented that the role of the Office was to strengthen South Africa’s constitutional democracy. He asked if instead of waiting for cases to be reported, the Public Protector’s Office was using its own initiative to investigate possible cases. For example, was it through its own initiative that it was investigating allegations of mismanagement and corruption involving housing allocations?
Adv Mushwana responded that the Office did carry out 'own initiative' investigations.
The Chairperson felt that the Office needed to consider introducing a customer satisfaction barometer. This would be useful to assess the Office’s impact on society. The Committee would deal with the Office's finances and achievements in greater detail in October.
Due to time constraints the deliberations and finalisation of the Judicial Matters Amendment Bill was postponed until 12 April. Imam Solomon chaired this session as the Chairperson had another appointment.
SA Human Rights Commission submission
The delegation from the SAHRC included: Mr J Kollapen (Chairperson: SAHRC), Professor K Govender, Dr Majodina, Mr T Manthata, Adv L Wessels, Mr A Keet and Ms L Mokate (CEO).
Mr Kollapen made some opening remarks and invited the CEO to brief the Committee on the Strategic Plan.
The CEO briefed the Committee on the strategic objectives and challenges facing the Commission, saying that it had achieved or partially achieved most of its key objectives. Inquiries it had conducted included the Khomani San and boomgates inquiries and hearings on Xenophobia. It had managed to produce a number of reports in the past year. Some of the strategic interventions it made included the roundtable on the property clause and the equality indaba. It was in the process of completing a ten year review on human rights and democracy that would be launched in June. The report would cover the Commission’s work and observations on democracy in the past decade.
The Commission worked under a very unionised environment. The Commission had no problem with the existence of unions. It was busy with the process of restructuring but this would not lead to job loses.
Mr Solomon said that Mr Kollapen had continually referred to the need for additional permanent commissioners. He asked if the Commission could motivate why it required additional Commissioners. The real purpose of the Commission was to establish a human rights culture. He asked if the Commission was succeeding or failing in establishing such a culture. The Commission’s task would be to monitor human rights should it succeed in establishing such a culture.
Mr Kollapen replied that at one stage the Commission had eight full-time and three part-time Commissioners. There was a constant need for expertise to develop certain areas. The current Commissioners could not be re-appointed when their term of office ended. This meant that there would be no continuity. New Commissioners should be appointed to work with outgoing Commissioners so as to ensure continuity
Mr P Maloyi (ANC) asked what the relationship was between the Commission and the Equality Review Committee (ERC). It seemed as if the Commission monitored the implementation of equality legislation while the Committee advised the Minister on the implementation. What was the view of the Commission with regard to the existence of the ERC? It was important to put resources where there was a need. He wondered it would be preferable to take the responsibilities and funds of the Committee and put them under the Commission. The distance between Mafikeng and Johannesburg or Mafikeng and Upington was too long and it was unfair to expect people from North West Province to travel such a distance in order to access the Commission’s offices. He asked when the Commission intended to open an office in North West province. It was disappointing to hear of cases where Africans were painted all over their bodies by white people. He asked if the Commission was succeeding in removing the obstacles to developing a human rights culture.
The CEO replied that the North West province would have an office by the end of January 2006. The Commission phased in offices on an annual basis and had just opened an office in Mpumalanga province.
Mr Kollapen replied that the ERC reported to the Minister and the Commission reported to Parliament. There had been a debate about the existence of the Equality Review Committee and the Deputy Minister of Justice was of the opinion that that Committee should not exist. Mr Kollapen had no problem with this opinion because people who sat on the Committee could make their views known through other forums. It would be preferable to have a meeting with the Minister so as to work the way forward.
Mr Manthata commented that the issue of culture was very difficult. Communities blamed the teachings of human rights for the decay of morality. Rural communities were inclined to say that human rights teachings were Western in origin and were not compatible with their tradition. Much had to be done to bring tradition and human rights teachings together. The Commission had observed that human rights had brought about divisions between children and their parents and traditionalists and modernists. The Commission had to bring in the elements of responsibility and accountability. It was difficult to indicate how long it would take the Commission to address the challenges it was facing. It was difficult to decide if the Commission should leave such an issue to commissions dealing with culture and languages.
Mr J Jeffrey (ANC) asked what criterion was followed in deciding where to open offices. The Public Protector had offices in all provincial capitals except the Kwazulu-Natal. The Commission had an office in Upington and not Kimberley in the Northern Cape province. In Eastern Cape the office was in Port Elizabeth and the location of offices had raised the issue of accessibility to the Commission. He said that reports on some of the Commission’s targets were confusing. He asked how the Commission measured if it had succeeded or failed in meeting its targets. The Commission’s guides were printed in 11 official languages. He felt that the languages spoken in a particular province should inform the decision on which language to use instead of publishing them in all 11 languages. This would minimise waste of resources. The Commission had in the past conducted hearings on a range of topics. He asked how the Commission decided on the subject of hearings. One would have expected indications of which right the Commission would focus on in this financial year. He asked how people could access reports on complaints on violations of human rights.
Mr Kollapen replied that reports on complaints were not on the Commission’s website for reasons of confidentiality. However, the Commission could provide information about the areas in which complaints were lodged.
The CEO replied that a lot of things were going on in Kimberly and the Commission had decided to have its office in Upington. This had proved to be very beneficial to the Commission as it had hosted too many people from Kimberly. The decision on location of the Eastern Cape office was influenced by discussion that the Commission had with the Commission for Gender Equality (CGE). The CGE had planned to have an office in Bisho or Umtata. The Commission decided that it should have its office elsewhere. The understanding was that the Commission would be able to use the CGE’s office in that province when necessary. However, due to resource constraints the CGE could not open the office as planned.
On the subject of measurable targets, Dr Majodina replied that Mr Jeffrey had identified a very big problem and the Commission was conscious of the issue. The Commission had been grappling with the issue of how to quantify and add quality to its work. The Commission had given many workshops but it was not clear if the workshops had managed to entrench a culture of human rights. A lot of national institutions all over the world had not applied their minds to the question of monitoring and evaluation. There was a study in Geneva aimed at giving guidance on this issue. It was hoped that the Commission would, during this financial year, be able to take cues from developments elsewhere to inform its planning. Monitoring and evaluation was on the national agenda and President Mbeki had alluded to this at the opening of Parliament this year.
Prof Govender noted that the purpose of public enquiries was to give opposing parties opportunities to be heard and for the Commission to deliberate on the issue before coming up with a report and recommendations. It was hoped that the report and recommendations would inform decisions made by the Executive. The Commission would normally assess if there were systemic complaints on a particular issue and then produce a report on the issue.
Mr J Malahlela (ANC) asked what prompted the discussion on the property clause and if the Commission had learnt anything from the exercise. The Witness Protection Unit had, in a previous meeting, referred to a research it had conducted. The research made them realise that some first world countries still had problems with witness protection systems. He asked if the Commission had learnt anything from its workshop on human rights culture in the Southern African Development Community (SADC) region. It was important to know if the workshop was detailed enough and if South Africa could say it was playing a particular role in a shaping a human rights culture in the region. He asked what the Commission meant when they said that labour laws were impeding it from instituting disciplinary proceedings against employees. He asked what amendments to the Promotion of Access to Information Act were envisaged and what prompted them.
Mr Kollapen replied that when the Commission had prepared its report on socio-economic rights there were major criticisms from non-governmental organisations against the property clause. Some people felt that it prevented land reform. A round table was convened so that people could show how the property clause stood in the way of land reform. It was not evident that the clause prevented land reform.
Adv Wessels replied that information was not everything but everything was nothing without information. Last year, the Committee had promised the Commission a session on the right to information. The issues involved were complex and difficult and the Act was difficult to implement. These included access to manuals to which the Commission was a depository and the language in which manuals had to be presented. In terms of the Act the manuals had to be in three languages. The Commission’s manuals were available in three African languages and in English. The Act was silent in terms of which languages private bodies had to use. The Act compelled different bodies to deposit manuals with the Commission and this was unreasonable in so far as it applied to indigent people. An ordinary person who ran a spaza shop or a taxi driver was expected to deposit a manual. The Commission had suggested that private bodies should be exempted. An exemption period was offered to allow Parliament to revisit the issue. The exemption period was soon to expire and the Commission would ask for another exemption if the Act was not amended.
The CEO replied that the Commission was not saying that labour laws were causing problems in themselves. The Commission’s Regulations came into force in 1996. A number of labour laws had been passed since then and the Commission had to update its Regulations so that they conformed to and were consistent with labour legislation. The Commission had already updated its Regulations and was waiting for them to be passed.
The meeting was adjourned.