Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities

AD HOC COMMITTEE ON REVIEW OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
16 February 2006
COMMISSION FOR PROMOTION AND PROTECTION OF RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES

Chairperson: Prof K Asmal (ANC)

Documents handed out:
Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities Response Document

Relevant Documents:
Terms of Reference
Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities Act (2002)
Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities Annual Report 2005/6 [available on www.crlcommission.org.za]

SUMMARY
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities was the sixth body to appear before the Committee. Questions were raised around why, in its two years of existence, the Commission had not managed to clearly define what a ‘community’ was. The Committee reminded the delegation that, although the constitution recognized associative rights, the Bill of Rights (individual rights) was paramount. The possible overlap in the activities of the language desk within the Department of Arts and Culture, the Pan South African Language Board and the Commission was raised and concern expressed that so far not any effective collaboration had taken place between the last two bodies. Members questions also touched on the outreach programmes and research the Commission had undertaken, and the need for greater self evaluation. The Committee was pleased to learn that, although it was included in the department’s budget vote, it could make budget proposals directly to National Treasury. Concerns were also raised around the tensions that existed between Commissioners and administrative staff, internal grievance procedures and when community councils would finally be put in place.

MINUTE
Chairperson’s opening remarks
Prof Asmal welcomed the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities delegation which comprised Mr Mongezi Goma (Chairperson), Ms Marlene Bethlehem (Deputy Chairperson), Dr Jan Christophel Landsberg (Commissioner), Mr Harry Gouvelis (Commissioner), Dr Willa Boezak (Commissioner), Ms Khethiwe Mboweni-Marais (Commissioner), Ms Pumla Madiba (CEO), and Mr Corne Smuts (CFO). He explained that the Committee was not a court of law and that institutions appearing before it were not on trial. The Committee’s questions would be guided by the terms of reference, and that no decisions or judgments were implied in members’ questions.

Discussion
Prof Asmal noted that the CRL Commission’s response document stated that their mandate was concerned with community or group rights. Group rights were however not mentioned anywhere in their documents, the statute or in other submissions. He wondered why this “obtrusive” word was then used in the first paragraph of their submission.

Mr Guma replied that the Commission’s work had evolved from an interest in ‘minority rights’. The Constitution was aimed at addressing how one created an environment for communities to assert their respective identities, bearing in mind those identities were artificially engineered in the past, in ways that eroded communities’ sense of identity. The Commission thus evolved from being concerned with minority group rights to concern for community rights as contained in the Constitution. It also recognised that, in addition to individual rights, one had to consider that people sometimes derived their identity from the group to which they belonged.

Prof Asmal pointed out that the response document indicated that community councils would be set up, but that there was no talk of ‘group’ councils. The Commission’s terms of reference were much wider than what was indicated in the response document.

Mr Guma thought it important that South Africa recognised the existence of communities that lived as identifiable groups. The exercise of the group rights should not be to the detriment of the individual rights. The challenge lay in balancing the rights of individuals with those of communities.

Prof Asmal pointed out that the Bill of Rights trumped everything else and acknowledged that certain rights could only be exercised in association and collectively. One could not practice one’s right to religion alone - one had the right to set up a church, the right to assemble, the right to get tax concessions and so on. In cases where people were for instance prohibited from building a church, it was the collective rights that were being violated, and not the individual right to pray.

Ms D Smuts (DA) added that even before the Constitution was written, the Apartheid-era Minister of Justice, Kobie Coetzee, had instituted an investigation into the matter. This pre-constitutional investigation of group and individual rights had taken place precisely to assist the then ruling party in taking a decision on the matter of individual versus collective rights. The final recommendation found that the way an individual asserted his or her rights was governed by the Bill of Rights, a bill of fundamental individual rights. If people exercised their rights in association, they did so as individuals before the law, that is, one asserted one’s associative rights as an individual. This was true of South Africa’s current constitutional order too. This was the only way the Constitution could work. It was thus a mistake to assert that the Commission’s exclusion from the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 insinuated “a hierarchy of rights, derogation and subordination of community rights to individual rights” (p5). Individual rights were one’s means of enforcement.

Prof Asmal believed that the Committee’s position had now been made clear. Noting that the Commission’s mandate also included the review of existing policies and legislation concerned with the rights of cultural, religious and linguistic communities (C-R-L communities), he asked how many laws and policies the Commission had reviewed in the last two years and what findings had been made.

Mr Guma explained that at first they were literally looking for “furniture to sit on and shelves to put the legislative records on”. The bulk of the first two years was spent on infrastructure and organisational structure. As for the reviews, he explained that the Commission looked at the nature of the complaints it received and linked recurring themes to policy issues that could be researched and analysed.

Mr S Dithebe (ANC) wondered how the Commission exercised its mandate.

Mr Guma challenged the notion that the door of entry for the exercise and enjoyment of human rights was open only to individuals. Given that very few countries had commissions that dealt with issues of collectives and communities, the jurisprudence in this area was “very thin on the ground”. It was important not to lose sight of the fact that collectives enjoyed rights over and above those of the individual. These rights were enjoyed within the context of groups.

Prof Asmal pointed out that the legislation spoke of ‘communities’ and not ‘groups’. The Commission was tasked with identifying these communities and organising community councils. It had not yet performed this task. The Committee took issue with the use of the word “group” – which surprisingly did not appear in any of the Commission’s other literature. Section 27 of the Constitution spoke of the rights of individuals in the context of the group.

Mr Dithebe referred to the Commission’s assumption that what it did was different from what some other institutions did. He drew their attention to the role of the South African Heritage Resources Agency (SAHRA) and asked if the Commission’s activities for the promotion of a community’s rights to develop its historically diminished heritage, differed from SAHRA’s.

Referring to the National Heritage and Resources Act (1999) which governed the activities of the SAHRA, Ms Modiba responded that that institution focussed on the tangible and protected them.
The Commission’s mandate on the other hand was about the intangible – culture, language and religion. However, one could not neglect the cultural, religious or linguistic significance of certain physical pieces of heritage and thus there might be a link between what the two institutions did.

Mr Dithebe pointed out that the Pan South African Language Board (PanSALB), provided for by Chapter 6 of the Constitution, performed more or less the same function.

Ms Marais responded that PanSALB promoted the use of languages and their development and also ensured access to related resources and information. The Commission was concerned with the promotion of the linguistic rights and cultural practices of communities, and was not concerned with “the making available” of learning resources.

Prof Asmal reminded the Commission that despite there being a language desk within the Departments of Arts and Culture, the Commission, like PanSALB, also received complaints from the public. There was enormous duplication in the terms of reference of these institutions.
A writer had said that the Commission dealt with language as a cultural reality, while PanSALB dealt with language in its technical legal sense. This difference did not emerge from the report.

Prof Asmal further noted that the Commission felt that their legal muscle for sanctions and independence was taken away by the provision to “report any matter that falls within its functions and powers to the SAHRC particularly in relation to litigation”. He pointed out that the legislation did not state that the Commission had to report to the SAHRC and that its muscle was thus not taken away – it had enormous powers of subpoena as well as extensive intrusive powers. Adding that everyone wanted muscle, he pointed out that the practicality of the muscle had to be considered. He wondered how the Commission could explain that it was denying itself powers that the legislation did not.

Ms Bethlehem responded that the difference between the SAHRC and the Commission was that the latter had to work “in a consensus-building manner, building peace and tolerance between people”. In the event of real legal issues that required legal action, the Commission referred matters to the SAHRC. She felt that it was intentional that none of the commissioners had a legal background – the Commission sought to build tolerance and peace through mediation. Their interventions were intended to be in line with this mandate.

Prof Asmal pointed out that that all commissions had to seek amicable settlements via mediation or conciliation, before seeking recourse in the law.

Ms S Rajbally (MF) wondered how the Commission interacted with community organisations that represented linguistic communities other than the ones for the eleven official languages.

Mr Guma responded that PanSALB had suggested that they would concentrate on the official languages, while the Commission could focus their attention on the other languages. Whilst the Constitution could define something as a language, communities might not agree. One of the Commission’s major tasks was to create an environment in which the right to language was allowed. They could then begin to enter into discussions with departments, especially the Department of Education (DOE), on issues such as creating a learning environment that went beyond promoting the official languages and recognised that there were other languages that were being spoken by a sizable number of people. Those communities also had the right to their languages.

These groups had to be identified so that conversations could be entered into. The Commission was in the process of looking at issues around identity and its assertion. People were asserting their right to language. The Commission was also formulating a linguistic profile of South Africa.

Ms Rajbally took it that the Commission had thus not identified itself with other community organisations. The Constitution accommodated a number of languages such as German and Gujarati, Hindi and Arabic which were widely spoken in South Africa. If the Commission had not yet identified the relevant organisations, it was still far behind in respecting all the languages spoken in South African communities.

Mr van der Merwe said that although the law spoke of ‘communities’, the Committee was now only hearing of ‘groups’ and ‘organisations’. He sought clarity on how ‘community’ was defined.

Prof Asmal said that although that was an important question, the Committee was not a portfolio committee. The Committee was tasked with conducting the interaction according to the terms of reference. He had many questions about the San and Khoi languages, but that was a portfolio committee issue. He presumed that the Commission was still working on a definition of ‘community’.

Mr Gouvelis replied that the Commission saw itself as the “Cinderella commission looking after Cinderella rights” and was envious of the SAHRC which wielded much more power. He agreed that individual rights were of primary importance, and said that the Commission was trying to ease the tension experienced when exercising individual rights collectively. It was trying to create the space for groups to legitimately claim and express themselves in a way they never could before, while protecting their rights rather than promoting the development of diminished languages. It was about engaging, encouraging and giving communities a platform.

Prof Asmal said that it was disappointing that the Commission’s literature gave no definition of what a community was. Since there would be community councils it was necessary for ‘community’ to be defined.

Mr Guma pointed out that the Commission would grapple with the challenges of the definition of a community when it dealt with community rights. Whether communities defined themselves as such, or whether the definitions were imposed from the outside, would be an important factor.

Dr Landman said that one could rely on Section 31 of the Constitution which said that “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community….to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.” This provision, read together with Section 7 of the enabling act, indicated that organs of civil society had the responsibility and duty to define themselves. The Commission could not define communities. The Commission should consider those communities that had organised themselves in terms of Section 7 of the enabling act, for recognition - the Commission was there to protect their interests and rights.

Prof Asmal added that definitions should not be inconsistent with any provision of the Bill of Rights. The Commission had however not yet identified communities. It was also clear that communities would not be self-defining since the Commission would still have the prerogative to either recognise them or not.

He noted that the Commission worked with the DOE, and pointed out that PanSALB did too. The lack of coordination needed to be addressed because the demands made on government departments were so enormous and often identical. The Committee noted that there was not sufficient coordination of activities between bodies working in an identical area and would discuss the degree of coordination and collaboration.

Mr Dithebe asked how the Commission approached cases where a particular cultural practice, such as virginity testing, might be considered a violation of human rights on the one hand and the expression of a cultural right on the other. The SAHRC, the Commission for Gender Equality (CGE) and the CRL Commission would potentially be involved.

Mr Guma responded that the CRL Commission had set up some mechanisms for “formalised cross-conversations” between the three commissions. The Chairpersons’ Forum was used to address some of the bigger strategic issues such as approaching government on some of their shared concerns. The CEOs’ Forum spoke to the specificity of the programmes that commissions engaged in. Public engagements and joint visits to communities to deal with specific complaints also took place.

Prof Asmal requested that the Committee be provided with a copy of the memoranda of understanding between the Commission and the CGE and the SAHRC. The Committee was also interested in seeing some minutes of the Chairperson’s Forum and would like to have a breakdown of how this forum worked.

Mr Dithebe wondered who would have the final say in cases such as the one he had earlier illustrated.

Mr Guma replied that the Commission considered how to address the complaint, and acknowledged that a particular practice might not be embedded in the culture.

Prof Asmal wondered what happened in cases where a practice was embedded in the culture. He wondered how one resolved such cases collectively – two commissions could not speak with different voices.

Ms Marais responded that the main thrust of their mandate was to build peace and friendship and to promote national unity within the context of the free association of communities as well as non-discrimination. Individuals had to agree to take part in a community’s cultural practices. In addition the practice had to be seen in the context of evolving cultures – everyone had to take part in their deconstruction and reconstruction. If certain practices were no longer serving the purpose they were designed to serve, they had to change. The Commission had to engage with communities so as to get a better understanding of the practices in question. Mr Guma added that the Commission considered which institution could best address the matter.

Prof Asmal quipped that he hoped that the Commission would not have to look at lobola.

Mr van der Merwe wondered what would happen if a linguistic community lodged a complaint that schools and universities were becoming one-language institutions. How would the Commission go about promoting and protecting languages that were being excluded?

Mr Gouvelis responded that his colleagues had been emphasising the consensus-seeking nature of the commission precisely because they had power of subpoena and thus could force people to at least appear before them. Unfortunately the Commission did not have the power to sanction.

Prof Asmal interrupted to point out that no commission had those powers. They did however have other powers – appearing before Parliament to make quarterly reports, being visible in public, holding press conferences. He added that the straightforward answer to Mr van der Merwe’s question would have been to say that the Commission’s power was to protect linguistic communities and not languages. The protection of languages was PanSALB’s task. The member had asked the question because the answer was not evident from the response document. He pointed out that if there was no clarity around what their task was, it would impact on their work.

Ms Modiba said that there were eleven official languages in South Africa and that they all should be treated equally. Education was available to all and people were free to attend the school of their choice. Accommodating all linguistic communities presented a challenge however. The DOE had done well in trying to address this challenge by putting in place a policy that allowed people to be taught in the language of their choice, if a certain number of learners required this.

The other challenge that needed to be addressed was the teaching and learning of languages, as well as the issue of medium of instruction. South Africa was still struggling with this. While English and Afrikaans could now run concurrently, South Africa still had a long way to go in ensuring that should thirty or more learners require it, all eleven official languages could run concurrently.

Prof Asmal said that the question that had been posed related to the Commission’s processes rather than language policy, which they could have “a fantastic discussion” on at a later stage. The matter had to be addressed by PanSALB.

Ms Rajbally said that in her constituency and elsewhere in the country there were many educators who could teach minority languages and were waiting to be accommodated in schools. She wondered whether the Commission was looking into the matter.

Prof Asmal said that the Committee would note the question but that it would be better asked of the DOE.

Mr Dithebe asked whether, in respect of its legal and constitutional mandate, the Commission’s policy recommendations were considered or accepted by departments. He asked how the Commission’s activities compared to those of the Moral Regeneration Movement.

Mr Gouvelis replied that in the last two years the Commission had been engaged in an extensive exercise and had gotten in touch with communities so as to start the conversation. The Commission was unique in that it was the only commission tasked with identifying the groups with which it was supposed to engage, and to then put in place formal mechanisms that could create that dialogue.

In the last two years they had put in place the infrastructure that enabled the commission to operate. Prior to having their first national consultative conference (NCC), they had had mini councils and conferences in each province. These were a resounding success in that the Commission had been able to identify the communities and their concerns. All communities in the relevant areas participated in the NCC.

The Commission had begun to adapt their infrastructure and their organisation in order to begin to deliver and to engage with government departments by making submissions and to identify areas in which they could make an impact.

Mr Dithebe said that Section 4 of the enabling act required that the Commission promoted and developed peace, friendship, humanity, etc. Referring to reports released by the Human Sciences Research Council (HSRC), he wondered if the Commission’s research substantiated the HSRC’s findings that race and other relations in South Africa were improving.

Dr Boezak thought it useful to inform the Committee of a practical example of what the Commission had done in this regard. In the first year of their existence the Commission had held about 18 mini conferences in diverse communities. These conferences were attended by diverse communities. The Commission had at that time considered what activities it could undertake, in the light of animosities created during the colonial and Apartheid era, to deliver on their mandate.

It had resolved a more than century-old conflict between the Nama and the San within the Khoi-San community. About 150 years ago San hunters murdered 34 Nama children. This resulted in 150 years of animosity which would have remained unresolved had a playwright not, about three years ago, written a very one-sided play about the incident. He had portrayed the Nama children as the victims and the San hunters as brutes and neglected to sketch the context in which the murders had taken place or to show that the San had been the victims of the incoming trekboers.

The Commission then brought the different Khoi and San leaders as well as playwrights together and negotiated to have the play be more sensitive to the historical context of the incident. The different tribal communities found peace and ended the conference with a peace service.

Prof Asmal said that the question related to how much research and evaluation the Commission had done. He added that its budget was very large.

Ms Modiba responded that the Commission had not done any similar research to that of the HSRC. Their mandate was about C-R-L communities specifically and not necessarily about race relations. They facilitated unity and diversity, even in spatial communities where people shared the same space, but were not C-R-L communities. They had not done academic research, but rather practical investigations and assessments, facilitating the getting together of different groups of people. She added that the Commission was after all only two years old.

Prof Asmal pointed out that Commissioners only had a lifespan of five years however.

Dr Boezak responded that the Commission had to prioritise their work, precisely because they had a small life span. There was for instance only one Nama religious community in South Africa. At the moment the Commission was trying to provide them with documentation that would support their history.

Prof Asmal pointed out that the Commission was proposing that research in this regard be done. He reiterated that they had a short lifespan and thus had to undertake activities that would have an impact, otherwise there would be very little point to their existence. In addition it was important to evaluate their own activities.

Mr Guma replied that it was important to also listen to the voices of communities. The view was that the academics have “hogged” public spaces, resulting in “small voices” not being heard. The Commission, as part of their strategy, decided that they should create space to listen to communities’ concerns and then do focused research. The outcomes of that research could then be shared with South Africa.

Ms Bethlehem said that the Commission had already done research informed by what Mr Guma had just explained. Their research on the rights of passage of communities would be launched in March.

Mr van der Merwe referred to a letter from about twelve Afrikaans organisations that had questions on the forming of a council for Afrikaans language and culture. He wondered what the chances of creating such a council were and how one would go about it. He asked if Dr Landman who had also made a submission, could comment on his thoughts as far as cultural rights.

Prof Asmal reminded the Member that Dr Landman was a commissioner on the Commission and could respond if his Chairperson allowed it.

Mr Guma responded that the definitions were not as neat as they might appear. The Commission could “extricate it from the hang ups of ethnicity that might have been associated with the past”. The Commission had engaged with some Afrikaans intellectuals on the matter. At a process level they had decided that in 2O07 they would begin to identify community councils but to reserve the right to decline those that did not necessarily help to propagate and advance the Commission’s mandate. They might thus be recognised as a group but not necessarily as a community council, because the latter had to be recognized in as prescribed by the Minister of the Department of Provincial and Local Government (DPLG).

Prof Asmal said that the idea that the Commission was excluded from the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000) was a serious matter because it affected their relationship with the law and other bodies, especially the SAHRC. Members had earlier explained that the Bill of Rights trumped everything. Whoever drafted the response document should know that saying that individual rights trumped community rights, was not a legally and historically correct statement to make. This misconception was affecting the Commission’s work.

Mr Guma responded that as far as the Commission was concerned, the Bill of Rights included issues of community rights. The Commission’s powerlessness had to do with the fact that they could not take people to court.

Prof Asmal said that the Constitutional Court had, in at least five cases, decided that individual rights trumped what may have been a community expectation. He reiterated that this confusion affected the Commission’s work. There was no question of subordination. The Committee would note that the Commission would review their submission in this regard.

Prof Asmal noted that despite the legislation allowing the Commission to define and delegate powers and to form committees, it reported that it did not have clearly defined roles and functions. This perception impacted on their efficiency.

Ms C Johnson (ANC) found that the response document reflected dissatisfaction with the oversight role played by and support given by Parliament. Other bodies had suggested that a special portfolio committee dealing only with Chapter 9 bodies be formed. She sought the Commission’s view on this.

Mr Goudevlis agreed with the suggestion emphatically. The Commission would appreciate a far more dedicated contact point with Parliament. They had long internal discussions about whether they belonged to any government department. They understood that transfers from National Treasury could only come via a government department, but did not think that that necessitated their subordination to that department.

Prof Asmal said that a Member of Parliament had suggested that the Commission should fall under the Department of Arts and Culture (DAC). He understood that the Commission was not pleased with falling under the DPLG.

Mr Guma replied that the Commission was left behind when the Department of Constitutional Development was taken out of DPLG.

Ms M Matsomela (ANC) thought the Commission’s youth democracy programme was a good one. She wondered what the relationship between the National Youth Commission (NYC) and the CRL Commission was like, and whether the NYC was involved in the programme.

Mr Guma replied that the Commission had already initiated conversations with the new NYC commissioners and had invited them to send representatives to the last conference. These representatives could later become trainers for the democracy workshops within the provinces.

Prof Asmal asked them to supply the Committee with additional information. The Committee had indicated that it had some agreements with other bodies, but had not said much about their relationship with PanSALB.

Mr Guma said that in this regard they had become victims of the “turbulence”. When the Commission took office, PanSALB were among the first that were invited to assist them with understanding their mandate. The previous PanSALB CEO had then delineated the difference between the two bodies. The Commission could however not establish a direct contact with PanSALB and were told to wait until the language board had stabilized.

Prof Asmal observed that in two years there had thus been no effective collaborative activity between the two bodies that shared a very similar jurisdiction.

Ms Bethlehem explained that there had since been contact between the two bodies’ legal representatives who were working on a memorandum of understanding (MOU) on their behalf.

Prof Asmal said that the Committee should have had that information before them, and that it should have been included in the response.

Ms Modiba explained that the Commission had a draft MOU with PanSALB. It had not yet been signed because they had collaborations and partnerships on specific activities which were quite general and had to be expanded on. The two bodies had established partnerships but there were finance related complications. Any draft agreement had to be costed so that when they planned their activities they knew what they were in for.

Prof Asmal was sympathetic to the Commission who, as a “rookie”, had to enter into an agreement with a body that was ten years old.

Mr Dithebe noted that the Commission’s response document had referred to certain institutional governance difficulties. He wondered what steps had been taken to address these, so that the Commission could operate effectively.

Mr Guma responded that the Commission had formulated the management and organisational structure that would inform the operation of both commissioners and administrative staff. Commissioners had only been given the appointment contracts and told to “get on with it”. The Commission had approached the DPLG to see if they could not get a document that more clearly specified commissioners’ terms of engagement. The Commission was still waiting on this document.

Mr Dithebe noted that the response document referred to “intermediate transgressions” which had not been addressed in the provisions. He wondered if any such had occurred and how they had been dealt with.

Mr Guma replied that there had been none. As they were developing the code of conduct, issues of arbitration in cases of serious transgression had been raised. The Commission was merely trying to put measures in place for dealing with matters that the code of conduct could not address.

Prof Asmal referred to the Commission’s uncertainty as to whether they complied with the disclosure of interest provisions. Section 15(1) of the enabling act clearly stated that all members of the commission had to disclose private business interests. The Committee was interested in where the information was vested and how accessible it was.

Mr Guma replied that commissioners were requested to make declarations, but that there was uncertainty as to whether both fulltime and part-time commissioners had to do so.

Prof Asmal pointed out that the law clearly stated that all commissioners had to make declarations.

Mr Dithebe said that 2005/06 Annual Report reflected that “contrary to good corporate governance, senior officials have not declared their business interests”.

Ms Bethlehem responded that at that time they had not yet received all the declarations. All of them had now been received. It was her understanding that they needed to be renewed every year. Although in the beginning this had been done systematically, it was no longer the case.

Prof Asmal noted that that morning he had received a letter from one of their commissioners. The letter contained a series of complaints that some commissioners shared: they felt that they were denied the opportunity to do their work, the Chairperson selected only certain commissioners to attend functions he was unable to attend. This letter prompted Prof Asmal to enquire about the mechanisms the Commission had set up for dealing with commissioners’ grievances. It appeared as though there was no mechanism for dealing with the grievance.

Mr Guma denied the allegations of preferential treatment for commissioners. The Commission “suggested” that if there was a grievance, Commissioners could write to the executive committee that sat before plenary to deal with such issues. He explained that some Commissioners had not been satisfied with the provinces they had been allocated. These issues could not be addressed by the Chairperson, and had to be referred to the executive committee.

Prof Asmal said that the letter also spoke of tension in the relationship between administrative staff and commissioners: “With the appointment of the CEO, a growing number of administrative staff were appointed to take the mandate away from the excluded part-time commissioners, replacing them by doing their work in conducting community outreach programmes. The commission with the long name became the invisible commission that nobody knows.” He thought this a very serious allegation for a member of the commission to make and wondered how challenges of this nature were resolved.

Ms Bethlehem said that the CEO and three staff members had been appointed only seven months after the Commission had commenced its work. Up until that time the Commissioners were the implementers. They resented that they no longer performed that function, once staff were appointed. The Commission had had a two-day team-building exercise with a mediator to address some of these matters. Commissioners were like board members and were the visionaries, while the administrative staff carried out their decisions. She regretted that a commissioner had felt aggrieved enough to write to the Committee and assured members that the grievances were taken seriously.

Mr Guma added that in the first year the Commission did not have any staff so the commissioners themselves did all the work. The Commission now had to differentiate functions. It was a work in progress and they were searching for a balance between the “readiness to do things in communities, while allowing staff to be a little more than just people who sat behind desks”.

Prof Asmal said that eighteen commissioners were appointed in 2004. The Chairperson appointed on a fulltime basis, the deputy chairperson on a half-time basis and the other commissioners were part-time. He wondered whether the work the Commission had to do was too big a load for “one and a half” people to carry.

Mr Guma agreed and said that since its first year the Commission had requested to be given the full complement of fulltime commissioners, as anticipated in the enabling legislation. Only the Minister of Provincial and Local Government could make such appointments. He explained that due to the lack of permanent commissioners, he often had no choice but to delegate visits to available commissioners when he was unable to attend.

Prof Asmal wondered whether the matter had been raised with the Portfolio Committee.

Mr Guma said that the portfolio committee had raised the matter of the impact these appointments would have on finance allocation. He added that the matter of which department the Commission should fall under, was also always raised.

Prof Asmal said that the Committee would look at the appointment process and wanted clarification that the Commission itself had already raised the matter with the relevant role players. Returning to the letter received from the commissioner, he asked what the state of the Commission’s internal processes was. The commissioner complained that he had invested his own money and then waited three to six months to be repaid. Prof Asmal asked whether there was any credence to this complaint. The matter had to be raised before a storm arose and Parliament had to get involved.

Mr Guma responded that DPLG had handled the Commission’s finances for nearly a year. Any claims made during that time were forwarded to the DPLG and then had to go through that department’s maze.

Prof Asmal said that staff members had once told him that the CEO was so busy that she would only sign claims when she had the time to do so.

Mr Guma said that that was an anecdote that he could not respond to it.

Prof Asmal explained that the Committee was not really concerned with the details but was interested in the arrangements for conflict resolution. The letter was an indication that there was some kind of internal conflict. The Committee thus raised the matter not because it was true, but because internal conflict had reached the point of someone writing to him.

Ms Marais said that the Commission did not have the experience to know how financial systems and the new regime for accountability, transparency and processes of procurement worked. That fell into the hands of the CEO who at the end of the day had to account for every cent spent. Not all of them were well versed in the financial regime they operated in. All Commissioners would have liked to attend all functions, but there were cost implications that needed to be taken into account. The Commission would have to build a mechanism of rotation to address the matter. The role of part time and fulltime commissioners had also not been clearly understood by all.

Prof Asmal thought it important to indicate what the involvement of part-time and fulltime commissioners was expected to be.

Ms Marais added that the Commission wished that they had regulations that clearly defined matters.

Prof Asmal said that the Commissioners could form reasonable arrangements without the use of regulations or consultants. Debating these issues amongst themselves would contribute to greater cohesiveness too. He felt that South Africa did too much through consultants.

Dr Landman said that his submission was that, not only the Commission but also most of the Chapter 9 institutions, had become “disenchanted” because their role was diminished and eroded once an administrative structure was put in place. Lawmakers would have to attend to the problem. There could not be conflict between the administration and the commissioners who needed to work together in a coherent manner. He felt that the problem stretched far wider than was contained in the letter the Committee had received.

Prof Asmal said that the law required commissioners to give direction and control. There had to be a measure of accountability but the Commission could not be involved in micromanagement. He added that because the Commission was very big, it was difficult to achieve coherence.

Mr Dithebe said that the response document did not indicate how complaints from the public were dealt with. He wondered why this process had not been included.

Mr Guma responded that the Commission did have a mechanism for dealing with complaints - the investigations and complaints committee. The complaints received in many incidences became the basis for research.

Mr Dithebe noted that the Commission was mostly involved in mediation and conciliation. He wondered why the same role could not be fulfilled by the Moral Regeneration Movement.

Mr Guma replied that the Commission was older than the Moral Regeneration Movement. One could thus ask why the latter had been formed if the role was already being performed by the Commission. The Commission preferred mediation and conciliation. The Commission had received a complaint because boys who had gone to initiation school had transgressed their school timetables. The Commission could have gone the legal route, but chose to resolve the matter with the principals of the schools through discussion. He added that the responsiveness of the school calendar to cultural demands could even be taken up with the DOE.

Prof Asmal said that when he was Minister of Education, the Department had said that nothing should interfere with the school calendar. The right to education, which was laid down in the Constitution as an individual right, took precedence over everything else.

Mr Guma felt that it was incorrect to assume that the present arrangement was sacrosanct and could not be engaged in, in a way that would resonate and respond to the issues.

Prof Asmal said that there were altogether 30, 5 million school children in South Africa and in a democracy one had to ponder how one resolved the needs and interests of all these coastal and non coastal children. One also had to consider the extent to which some practices were unregulated, and if uncontrolled potentially unhealthy and dangerous. This was why the Commission had to be clear on what its constitutional role was. He reiterated that the Bill of Rights trumped everything the Commission did.

Ms Modiba felt that Mr Dithebe’s question around the moral regeneration movement could be extended to included African renaissance issues.

Mr van der Merwe referred to the State President’s remarks the day before and agreed that it was important for South Africans to discover each other.

Prof Asmal noted that the Commission had community outreach programmes and requested them to supply the Committee with further details.

Mr Guma said that they had managed to get young people from Orania and Kimberley to take part in a programme. One of the important aspects to the Commission’s work was that it had to create public meetings and invite communities to engage in specific programmes that would lead to them discovering each other.

Dr Boezak added that after that event the senior members of Orania reached out to the Griqua community of Kimberley for a joint meeting. The Commission wanted to see such outcomes.

Ms Bethlehem added that the cultural diversity days were held in many provinces. The Commission opened each day of its NCC, with prayers from the 13 different religious communities that attended. One of the people who had attended called it a “celebration of humanity”. This reflected how the Commission tried to reach out to people so that they could get to know each other.

Mr Guma explained that the outreach programmes had a rural and urban thrust. The Commission also held cultural diversity days in all the provinces as well as Africa days.

Ms Smuts asked if it would be possible for the Commission to put a budget percentage on the activities it had just mentioned. She was pleased to learn of the community out reach programmes. She referred to a University of Cape Town analysis of the Commission and other Chapter 9 bodies, which said that the Commission’s emphasis on nation building, although it may encourage transformation, presented the real danger of alienating communities who did not feel represented by the political and cultural mainstream. Her colleague, Ms Desire van der Walt, pointed out that the expenditure on the African day celebration represented 15% of the Commission’s budget expenditure. She wondered whether the Commission would be focusing on community outreach rather than national celebrations, which other organs of state could handle.

Mr Gouvelis responded that one of the Commission’s constant concerns was determining what percentage of their budgets would be spent on programmes. The Commission did not want to create a situation of “plural mono culturalism”, where cultures did not interact with each other. The Commission had to balance the nation building aspect with giving a platform to all those cultures that were not of the mainstream. The Commission was pleased that for the first time they were entrenching processes for tying their financial expenditure with their strategy and programmes. They were for the first time engaging National Treasury directly, without going via the DPLG, which gave them the opportunity to voice their need for certain programmes. He continued saying that programmes had to be implemented by people.

Ms Modiba added that the Commission was consciously moving away from celebrations and rallies towards activities with content and meaning. The Commission was considering how holy day/holidays could be celebrated so that people could be allowed to express themselves within the context of what those days signified. Although celebration was the expected outcome, Africa Day and Diversity Day were not about meaningless celebration. On 25 May 2006, for instance, the Commission had held a conference that addressed minority and majority rights with a view to gaining new understanding of the issues involved.

Mr van der Merwe wondered why he had never heard or seen anything about these activities.

Prof Asmal agreed that it was very easy to “cultivate the press” and to ensure that they were present at a location. He pointed out that that South Africa was party to the Convention on People’s Rights in Africa and felt that it could be used as a platform for greater exposure.

Mr Dithebe noted that the 2005/06 Annual Report indicated that the Commission had a vacancy rate of 42%, and that Parliament’s funding of it was not sufficient for it to appoint the full staff complement. The Commission had started off with a budget of R8 million in 2003/4 and at present stood at R11, 3 million. He wondered whether the Commission had done any calculations to determine what amount would satisfy their needs. There was also an indication that they felt that their budget process could possibly jeopardise their independence.

Ms Modiba responded that in their first year the budget had not been based on any calculations but was simply made available to set up the institution. The same trend was followed in the following year, because it was assumed that the first budget had been set up correctly. She was pleased to report that now everything was falling into place and that the budget was worked out in accordance with the Commission’s strategic plan. The Commission had also begun to directly interact with National Treasury.

Prof Asmal said that there was enormous variation among bodies as far as budgetary process was concerned. He asked to whom the Commission submitted their budget proposal. This was important because it impacted on the institution’s independence.

Ms Modiba replied that the Commission and the DPLG took the proposal to the National Treasury and all three sat to discuss it. She confirmed that the Commission was included in the DPLG budget vote.

Prof Asmal asked whether the money was allocated directly to the Commission.

Ms Modiba responded that because the Commission did not have a vote, money was transferred via the DPLG, who transferred the allocation in quarterly tranches.

Prof Asmal asked whether there was any supervision from DPLG in how the money was spent.

The Commissioners responded that they had to submit quarterly reports.

In reply to Prof Asmal asking if a tranche had ever been turned down, Ms Modiba said that this had never been the case.

Prof Asmal confirmed that the Auditor General went through the Commission’s books and that they made quarterly reports to Parliament directly and not via the DPLG.

Ms Modiba explained that in the first year the report was sent to the Minister of DPLG who tabled it. In its second year the Secretary of the National Assembly had questioned who should table their report. The Commission was not certain and said that it thought that it should be done by the head of the National Assembly. Since then it went directly to the Speaker.

Mr Dithebe noted that the Commission wanted to have its own budget vote and asked what they based this argument on, especially considering that the Commission had only been existence for two years. He wondered if they thought that they would then get an increase in their allocation.

Mr Guma responded that it was not based on the allocation but rather related to the commission’s independence and the need for being directly accountable to the National Assembly.

Ms Rajbally asked if the budget covered the Commission’s outreach programmes and advertising.

Ms Guma responded that while the allocation covered outreach and marketing, it did not cover the provision in the enabling legislation for the Commission to make to community councils. Since none had so far been established, it was not such a big problem. They would discuss the matter with National Treasury, once the councils had been established.

Prof Asmal pointed out that in his experience direct engagement with National Treasury did not necessarily mean that one would receive a greater allocation. He noted that the Commission hoped to have 20 staff members in 2007 and requested a breakdown of their staff complement.

Mr Smuts replied that the organogram was only put in place from 2005. There were eighteen commissioners and 46 administrative staff. Administratively there were the CEO, CFO and four directors, with three managers each assigned to them. The remainder of the staff was made up of the corporate services and financial management staff.

Prof Asmal said that the 2005/06 Annual Report indicated that the high vacancy rate was due to the full operational structure not having been approved. There was also no performance management process in place. He sought clarity on these issues, because they attested to the Commission’s efficiency.

Ms Modiba responded that the organizational structure had recently been approved. Although they had a very conservative number within the structure, even it could not be filled.

Prof Asmal wondered who approved the structure.

Ms Modiba replied that the Commission itself did so, and confirmed that it would be part of their budget proposal.

Prof Asmal wondered whether anyone had agreed that their full staff complement (of 66) would be funded.

Ms Modiba responded that although the Commission had agreed to it, they had not yet negotiated it with National Treasury. They had so far only submitted a written proposal. As indicated earlier, the Commission was in transition. They dealt directly with National Treasury, but got their money via DPLG. She hoped that the process would become smoother and that they would be able to motivate their case at budget hearings.

Prof Asmal said that the Committee would try to determine whether other bodies received their allocations in tranches or in one transfer. This was important because it affected one’s planning for the whole year.

Mr Dithebe wondered how many of the 46 vacancies were funded. Given the limited resources, how did the Commission hope to negotiate the establishment of the provincial offices.

Ms Modiba replied that at the moment fifteen posts were occupied. These were funded. Through negotiations, they had managed to get an additional five more funded posts, which they were in the process of filling. The rest were not funded. The Commission would continue negotiations.

Prof Asmal pointed out that in terms of pubic administration practice, a vacancy was a funded post that had not been filled. If it did not get filled within a reasonable time, that post was lost.

Ms Modiba said that the operational budget was also taken into consideration. If someone filled a vacancy, one also had to have the budget to fund that official’s responsibilities.

Mr Guma added that National Treasury had had a budget for the Commission before it existed and had required the Commission to then justify why that budget was too small. The Commission had then started working out what their minimum staff complement would have to be.

Prof Asmal requested the Commission to supply the Committee with a breakdown of how much of the budget was spent on projects, administration and salaries. He asked from where the additional R300 000 had come that the Commission reported.

Ms Modiba responded that this amount came from ABSA Bank for a specific activity for its Africa Day celebrations, which it hosted in partnership with the Department of Foreign Affairs (DFA).

Mr Dithebe asked how the Commission had spent R12 million in 2004/5 when it had only received an allocation of R9 million.

Ms Modiba responded that the additional amount had been rolled over from the previous year in which the Commission had under spent. It was rolled over because the Commission in that year held the first NCC.

Prof Asmal asked what the Commission’s MTEF period was because that impacted on their staffing.

Mr Smuts explained that the allocation for 2007/8 was R13, 403 million. The Commission did not receive anything in addition to their baseline budget. They indicated to National Treasury that they had a staffing problem and that they had prioritised the posts. They would in a phased manner try to fill their full complement. National Treasury then approved a further R2 million for each of the MTEF periods. He did not have all the information at hand but could make it available.

Ms Modiba pointed out that the NCC, which cost between R4 to R 5 million was provided for in the allocations. The legislative framework stipulated who had to attend the event. The amount needed might increase once the community councils were in place as the law required them to attend.

At this point Prof Asmal excused himself as he had a flight to catch. He thanked the Commission for its presence, and said that they might be invited for a second appearance. Ms Smuts chaired the final minutes of the meeting.

Mr Dithebe wondered what they had done to remedy the weaknesses the Auditor General had identified and which were listed in the 2005/6 Annual Report. These weaknesses included that most policies were only approved in 2005, general lack of segregation of duties, journals were not properly authorised and other matters of financial control.

Ms Modiba responded that the staff complement, specifically in the area of financial management, had been very lean. Due to lack of resources, the required posts could not be filled. This matter had been addressed to a certain extent. The policies were not in place at the time but were in place now. The Chairperson of the finance portfolio committee could attest to their progress.

Ms Smuts wondered whether the policies gave effect to the Public Finance Management Act.

Ms Modiba responded that the Commission was now very close to being fully compliant with that Act. This was one of the things that they made a submission about when they requested more money. There were certain positions that the Commission was obliged to have, and these were the ones they filled first. There were challenges as far as delivery was concerned and there were many programmes that needed to be implemented. The balance between the budget and delivery had to be found in order for the Commission to be effective.

The meeting was adjourned.