South African Human Rights Commission

Meeting report

AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
9 March 2007
SOUTH AFRICAN HUMAN RIGHTS COMMISSION

Chairperson: Prof A K Asmal (ANC)

Relevant Documents
SAHRC Response to Committee Questions

SUMMARY
The Committee engaged with the South African Human Rights Commission along the lines of the questionnaire sent out to all of the Chapter 9 institutions. The Committee questioned the function and role of the Commission, its relationship with other bodies, the functioning of the Chapter 9 Forum and the overlap of its functions and what areas it was concentrating upon. Particular emphasis was placed on the amount and nature of the work done on gender matters, children's rights and racism. The accountability of the Commissioners and staff, and the roles of these functionaries were examined and questions were asked on the performance management agreements and the review done two years previously. The jurisdiction of the Commission to all persons was discussed. The Commission's mandate on socio economic rights was also questioned, together with the different approaches available in terms of the constitutional powers and those of the Promotion of Access to Information Act were examined. Its procedures, the questions of enforcement of recommendations, the Equality Courts, the budgeting process, declaration of interests and staff discipline were discussed. The functioning of the provincial offices was raised.

Further concerns were raised by the Committee about the number of ‘foreign voyages’ and the view was expressed that they should concentrate more on the internal affairs of South Africa. Concern was expressed at the high vacancy rates in the legal services and the educational departments. It was noted that the budget had doubled. Loans to personnel were questioned. The Committee finally expressed its satisfaction with the work and the profile of the SAHRC.

The Commission expressed its disquiet with the fact that it had few enforcing powers, and on the disparity in its ability to obtain information under the Promotion of Access to Information Act and the information on the socio economic rights. It was critical of the fact that it had met with the Department of Justice and the Portfolio Committee on several occasions but had not received adequate action from the Department, nor sufficient time with the Portfolio Committee to examine issues in depth. Concern was expressed that the equality courts were not functioning as they should and the intention of the legislation was not being realised. It was also concerned that timeous attention must be paid to the new appointments of councillors, so that there could be institutional memory and a transfer of knowledge. It mooted the idea of a separate portfolio committee to which it could report, who might also deal with appointments of Commissioners.

MINUTES
The Chairperson introduced the work of the Committee, stating that its purpose was to examine the use of resources, the rationalisation of the entities, the appropriateness of recommendations and their consistency and accountability. The Committee was concentrating on institutional governance, improvement of co-operation and liaison with government and civil society. He read out the terms of reference. He noted that two volumes of responses had been submitted. The Committee had also examined the Human Sciences Research Council (HSRC) and the Civil Society Advocacy Report on institutional arrangements. The Committee had received a comparison with he Northern Ireland Human Rights Commission.

South African Human Rights Commission (SAHRC)
The Chairperson referred to an article that set out the path of the Commission, and particularly the accountability issues. He noted that the SAHRC was a constitutional body, yet seemed to be lacking in mechanisms for enforceability. He asked whether there was an intermediate element that came into play.

Mr Jody Kollapen, Chairperson, SAHRC stated that it was necessary to see where the Chapter 9 institutions fitted together and functioned in relation to other institutions such as the Courts, civil society and the executive. At one level there was answerability, in the sense that this was a component of accountability, as SAHRC had the power to obtain an account of what had happened.

The Chairperson asked for an indication of what was meant by of accountability.

Mr Kollapen said that in a democratic state citizens would vote and given power. The elected representatives would agree to be held accountable in terms of the Constitution. Parliament exercised an important role.

The Chairperson asked if accountability was related to oversight

Mr Kollapen said that institutions like the SAHRC played an important role in the broad spectrum of how to advance the notion of accountability. It would be naive to assume that it held all the objectives of accountability. It had no power to enforce as it was not a Court of law. Some suggested that its value was then questionable. He disagreed with that because there were many matters that were not suitable for a Court. A commission, if functioning optimally, could call people to answer for their conduct. It was distinguished from civil society because it had the powers to advance the constitution, including the power to subpoena. Once that was done, however, the question was what further it should do. It did not have a Court's power to sanction. It was therefore important for the relationship between this and other institutions that parliament could use the reports they produced, and hold the executive accountable. Where in a particular case it had made recommendations, it would take the matter to court and then it was no different from any other litigant. The notion of having a large unmet need for assistance, thirteen years down the line, was unthinkable. The Chapter 9 Institutions' critical role was to understand the human need and connect it to an obligation.

The Chairperson said that the emphasis on accountability and enforcement was a forced one. There was a right to see information, to subpoena and to demand information and write reports. The institutions therefore could ask for accountability, but could not enforce it.

Mr Kollapen said that research had also looked at how the forms of accountability ran. There was a distinction between the type of control exercised by the Courts and co-operative control, which would include dialogue, discussion and so forth.

The Chairperson asked for a response on section 184 of the Constitution. The SAHRC had as its legal basis for existence sections of the interim constitution. He asked how SAHRC viewed this mandate, and whether it would require updating. The SAHRC Act was very brief. The first question was that there seemed to be a problem in that the basic document was an interim constitution that conferred much wider powers. He asked whether SAHRC had done anything about this. It must have clear terms of reference. Although a decision by the SAHRC may not be binding legally, there were certainly consequences that attached and their views must be respected.

Mr Kollapen said that the investment in human rights was fundamental to the institution and it continued to function on that basis. There was a process to look at the review of the Act, which was taking some time.

The Chairperson said that it was currently unconstitutional and he wanted to know what process had been followed to correct it.

Mr Kollapen said that there had been processes and discussions with senior members of the Department of Justice (DOJ). Perhaps SAHRC had not been as vigilant as it could have been. He stated that the SAHRC would report to Parliament on an annual basis and not to the President.

The Chairperson felt this was too elusive, and suggested that perhaps the representations would be better directed elsewhere.

Adv Tseliso Thipanyane, CEO: SAHRC, said that the SAHRC had submitted amended regulations to the DOJ so many times and was told that there was concern about yet nothing had been done. In May 2006, six months after it had been requested, there was finally a meeting with the Director General. SAHRC had raised concerns about the Act and the regulations which were not being followed. There was still a continuing frustration that matters were not attended to.

The Chairperson asked whether this had been raised at the Portfolio Committee on Justice and Constitutional Development.

Mr Kollapen said that meetings were held with the Committee. The issue of the Equality Act had been raised and the SAHRC would report to the Committee on a fairly regular basis.

The Chairperson expressed the view that SAHRC was following the incorrect route. If it wanted change it should contact the Minister, not the civil servants, who would be being presumptuous if they attempted to reply on matters like this. There should be evidence of the representations. There was a question of jurisdiction. This was why he had asked about the constitutional basis for the SAHRC itself. .

Ms C Johnson (ANC) asked how SAHRC viewed their independence and to clarify whether it regarded itself as completely independent or partially so.

Mr Kollapen said the SAHRC should be in a position to exercise its powers without feat favour or prejudice. There were many features that could be put in place but the manner in which it functioned was important. It believed it formed part of the broader society and there must be an understanding and relationship to other structures. It was independent, but it could not function in isolation. There was scope for the Commission to work in a cooperative way when appropriate and necessary, and it would have to work in an adversarial way when necessary. When embarking on programmes independence should not be compromised, and should be able to be examined and assessed.

Ms Johnson questioned the mandate of the Committee. She asked whether, if she was a resident of Khutsong, for instance, she could phone it and request help.

Mr Kollapen said it would depend on what the person wanted the SAHRC to do. Its stance was that it should not condone conduct that fell outside the law. However to ignore the root causes of conduct would be wrong. It would not support illegal causes but would rather try to address the problems in an impartial fashion. For instance, it had been approached by the street courts in Mamelodi, who now wanted to work with the police but did not know how best to approach them in view of the fact that the street courts were operating illegally. Some of the Commissioners had actually been to Khutsong, because the rights of children were at stake. The residents had said that they would be appealing to the Courts to uphold the steps taken. However the matter went into a lull. SAHRC should be making a follow up

The Chairperson said that in Ireland, during an illegal strike the Court had held the demonstrators liable for disrupting the rights of the children. The courts therefore looked to the best interests of the child so the freedom of association took second place.

Dr T Delport (DA) said that Section 184(2)(a) conferred the power on the SAHRC to investigate and report on human rights and investigate any perpetrator. He asked if anybody was exempt from this.

Mr Kollapen said that the short answer was no.

Mr Delport had asked because a Minister had recently been investigated for violation of human rights but had stated that the SAHRC had no right to investigate him. He was worried that this went to the heart of the independence of the Commission. .

Mr Kollapen said that the Minister had violated the rights of the person who brought the complaint. It was correct that the Minister had raised the issue whether the Commission was legally competent to conduct the investigation. SAHRC had sought clarity and were of the view that it acted within the powers laid down. It was committed to trying to see the matter through. The opinion was awaited. From his side the Minister must justify the stance taken.

The Chairperson noted that there were complexities to the investigation of matters. He noted that the rights were also applicable horizontally to private institutions. He asked to what extent the Commission saw its mandate over private or individual institutions, and whether it could act as a watchdog. Many of these exercised enormous power. There was no reference to this function in the response given to the Committee

Mr Kollapen said that the power existed as far as he interpreted the mandate. The Commission had previously taken action against, for instance, recruitment agencies. There was also a project on human rights and business. SAHRC was mindful that power was about accountability. The individual power was sometimes in excess of state acts.

Mr Leon Wessels, SAHRC Commissioner, said that the Commissioners had taken an oath when taking office. It did not matter who was the alleged perpetrator. SAHRC had often found itself in the predicament of having to subpoena important role players, including the premiers. The Commissioners would discharge their duty. The horizontal applications were important. In many instances the net effect of activities yielded the best results if they were grouped in a systemic manner. The enquiry into voluntary associations was far reaching and had good implication for private bodies, and also had a spin off in terms of the promotion of Access to Information. SAHRC was alive to the challenges.

The Chairperson said that there should be emphasis in the report on how far the jurisdiction extended.

Ms Johnson noted that the SAHRC was also to report on socio economic rights. There had been problems with government departments not responding to the requests for information. She asked in what way the SAHRC could be assisted in the strengthening of the function

Adv Thipanyane said that he had submitted six reports that mentioned departments that were not compliant. All had the duty to respect and uphold the rights and SAHRC had assumed that when they were requested to give information they would act. In terms of the Act there was a criminal sanction. SAHRC had not yet used that power against the government officials but may use it in future. The point was that the Government should be committed to action and recognise the role of the Commission.

Ms D Smuts (DA) mentioned that there were other government departments who had reported on other issues. She asked where the distinctions came in.

Commissioner Wessels responded that Promotion of Access to Information Act (PAIA) was important. He believed that powers originated differently. Some came from PAIA, but the socio economic powers derived from the Constitution. SAHRC acknowledged its performance in pursuing the lack of responses left something to be desired.

The Chairperson said that it may be that the departments were wary of providing information. He made the point that the criticism had been levied that the hearings of the SAHRC were sometimes not constructively managed. The complaint had been made that reports might be made and might put forward viewpoints but in their decision the Commission represented the points as objective facts. It was said that SAHRC was not in fact testing the information before making a judgment. He thought this was intellectually flawed if it was presenting as facts what were in fact assertions. There had been a criticism that the views of the outside body had been accepted as if applicable in South Africa. He requested comment, specifically in relation to the Department of Education (DOE) matter.

Mr Andre Keet, Deputy CEO: SAHRC, said that the Department's response to the SAHRC must be read in context. The public hearing was a public accountability mechanism. Not only did SAHRC have people presenting to the Commission, but it also had background documents as listed in the Right to Basic Education Report. He found it strange that the DOE should debate that the procedures were wrong. There was an issue that people were not exercising their right to education. He did not believe that the Commission was denying any rights. There were various forms of information given on which SAHRC had come to a conclusion. The validity of findings from the SAHRC was much stronger than those produced by DOE.

Mr Wessels dealt with the general approach to enquiries. When the SAHRC did an enquiry it was transparent, open, invited comments and information and invited the panels to include outsiders, including experts in a particular field. In that process it could not stifle information placed before it. Without regard to all the facts, he would not like to engage in discussion with DOE but he found it strange that DOE had found it necessary to challenge the process. The Commissioners walked around to get the feel of what was happening to ensure that when SAHRC drafted the terms of reference it could include what it had discovered on the ground. There was uneasiness about the enquiry long before it even started. The SAHRC said it would give the DOE an inside lane. It would not wish to ambush or embarrass the DOE. Therefore the Director General and the Deputy Minister of Education were asked to open the discussion by way of presentations. They were able to sit through and to make the closing remarks. The fact that they may not have agreed with the SAHRC did not mean that a scientific approach had not been followed.

Th Chairperson asked whether the SAHRC would give the Department the opportunity to comment first.

Mr Wessels confirmed that it did.

The Chairperson asked if the respondent would also, on conclusion of the enquiry, receive a draft report and be able to comment on it.

Mr Wessels said they would, and there were some changes to the report. He added that only three provinces had made submissions.

The Chairperson asked what had been done to ensure that the Act was working. He commented again that it should have been corrected long ago, as it was "farcical" that it had been in force for six years while still referring to the interim Constitution.

Mr Wessels said he had been waiting for years to answer this question! He noted that the submissions had been made to the Portfolio Committee on Justice and Constitutional Development (PCJ), which promised that SAHRC could return at a date that would be set aside purely for discussions on PAIA. That date had never been given. He recapped that the constitutional principle was agreed to, that there be open and accountable government. In the certification process the judges had said that the right was good, but that the open and accountable government aspect was not a fundamental right. International practice seemed to indicate that in fact it was a fundamental right. The SAHRC had tried in discussions to elevate this right at least to the level of the mandate for socio economic rights. There should be a challenge to ensure open and transparent government. However the rights emanated from different sources, as explained earlier. Mr Wessels added that the SAHRC had held an international donor-funded conference, to which it invited the "PAIA family", including the committee, in 1999. The Open Democracy Act emerged from the legislature in a very different form to that in which it entered the process.

The Chairperson said that once again this returned to the question of enforcement. There could be no enforcement without going through a litigation process. He asked again if submissions had been made to the effect that there must be some machinery for enforcement.

Mr Wessels confirmed that there had been proposals. In 2000 the Parliamentary Select Committee charged the DOJ to report to Parliament within 12 months on the position of an Information Commissioner. No reports had come out from the DOJ, despite various submissions and requests. Given the fact that there was an Act, the approach was that SAHRC would like to realise the rights and take up the challenge in terms of the constitutional rights. It was unhappy with the absence of an alternative dispute mechanism and had made submissions year in and out to different Ministers and Deputy Ministers and the Select Committee. It had an indaba and there was a substantial document. There were commissioner reports suggesting the best alternatives. He did not believe one single year had passed when SAHRC had not engaged someone on this topic.

The Chairperson said that this Committee would note that there had been persistent enquiries and there had been no action on the representations to Parliament. This was a disgrace because it was contrary to democracy. It was impossible to expect SAHRC to go to court. He was aware that a department would be able to stall for a long time, and he cited a case in which an 85-year-old pensioner was seeking information, which might not be provided before she died.

The Chairperson asked if additional resources would be required. If the Committee were to propose that the recommendations be followed it would need to have some idea of costing. The Committee would not like to make academic proposals. The unintended consequence of passing this legislation was that there was a broken link when it came to enforceability.

Mr Wessels noted that an accolade was due to his colleagues who had drafted the guide on PAIA in all eleven languages.

The Chairperson believed that the Ministers in charge of those Departments that had not given the requested information should receive letters. He asked if the SAHRC had published the names of the defaulting departments.

Adv Thipanyane indicated that this was an annexure.

The Chairperson said that if SAHRC wanted accountability they should apply the "Shame Factor" to name the national departments. He would revert later to the question of whether the department should be given three months to reply, failing which special attention of Parliament should be drawn to them.

Ms Johnson led on to the Equality legislation. This was the only Chapter 9 Institution that had referred to this legislation in its reply. It had advised during the equality review last year that it had litigated 15 cases and had experienced some problems. She asked for details.

Mr Kollapen said the number of cases had now risen to 26. The experience of the SAHRC was mixed. There had sometimes been poor training or training that had taken place long ago and been forgotten, and many officials did not always understand their duties and responsibility. The Clerk of the Court should take down the complaint and send it to the respondent. The magistrate should then assess the matters. However, rather than being guided through the process many people were being told to go to the Legal Aid Board or an attorney, which was defeating the purpose.

Dr Zonke Majodina, Deputy Chairperson: SAHRC, said that the Commissioners had found that over and above these problems the Court seemed to have a problem in how to deploy the properly trained officials, who were being moved on to other positions or other courts, thus losing the expertise. The training had now stopped. Even though the Act was supposed to bring justice closer to the people, having matters heard expeditiously, it could take up to two years to have matters resolved. There was an attitude problem. Some magistrates were trained but were not interested and they would either reject the cases or have them reviewed, adding further to the time taken to resolve the matter. Lastly there was lack of publicity even among court officials, and there would be no indication outside or inside that the court was sitting. At one venue the Court monitor did not have a copy of the Act in the Courthouse. It was an infrastructural, attitude and management problem. It was a pity that such an important Act clearly had not functioned as it should. Some areas were functioning but again some had not had a single case, and the magistrates did not seem to find this unusual.

The Chairperson said that there should be active publicity. This Act was the core of the whole Constitution. He asked how the SAHRC saw its role as a campaigning body.

Mr Jody Kollapen said that SAHRC had raised these issues, particularly concerning the failure to ensure that the positive duties to advance equality were known.

Dr Majodina said that the promotional aspects of the Act were equally, if not more important than the reactive parts. The promotion of the Courts should have preceded or been simultaneous with the Act's promulgation. She could not understand why the Minister had not responded to these concerns.

The Chairperson asked if SAHRC had asked the PCJ for a special session on this.

Adv Thipanyane replied that this issue was raised and he was told that the regulations would be in place. Two years ago he had addressed the Chairpersons of Portfolio Committees to the effect that it was unacceptable that the legislation was not being effectively enforced so long after its promulgation.

The Chairperson read out a comment. This was to the effect that Parliament needed to devise appropriate mechanisms to strengthen the capacity for departments to provide the information that was required. It noted that the SAHRC was not responsible for forcing service delivery but should voice its opinions and should go to the courts to have matters addressed. There was a note that SAHRC reported through the Justice Portfolio Committee and it was the function of parliament to assist it. The Chairperson said that although this comment seemed to emanate from an NGO, in fact it was a comment by Minister Trevor Manuel, and vindicated the function of the SAHRC, and suggested that it should be campaigning and taking government departments to court. He said that he would return to this issue.

Mr S Dithebe reverted to the problem of the Equality Courts. He noted that apart from the mindset that made the implementation difficult, the SAHRC was apparently proposing that the Legal Aid Board should be involved. He asked for clarity on this point.

Mr Kollapen said that this was not in fact a formal proposal but was still in discussion at the Commission.

Dr Majodina clarified that the intention of the legislation was that it should be easy for people to approach the Court. They could approach the Court personally, or be represented by any other person, and they could ask the Commission to assist. There should not be a need for legal representation. However, the complainant often found himself at a disadvantage where the respondent would hire high-calibre lawyers, so there was need to come up with some form of assistance to the complainants.

Ms Johnson said that one of the issues raised by SAHRC as a challenge was the lacuna in the terms of the numbers of commissioners and the issues of continuity. She noted that a letter had been written to the Speaker. She asked for clarity.

Mr Kollapen said that the institution should endure for the future and that Commissioners must be able to ensure that they left behind an institution that was credible. They were concerned about the make up of the Commission. When the Commissioners had been appointed to their second (and last) term the letters of appointment arrived only on the day that the first term ended. They believed Parliament should be thinking well in advance to ensure that a new team of commissioners would be in place well before expiry of the term, to allow for a proper take over period. It would be sad if the commissioners could not pass on their learning and experience to the incoming team.

The Chairperson said that there should be exit interviews. He commented that Parliament in fact proposed the names for appointment.

Ms Smuts said that in consequence of the last round of interviews for commissioners, the Committee had selected eleven names. Some of those recommended were particularly good, in the view of the Committee, and the Committee had been excited about them, but they were not appointed. It was crucial to have the proper appointees. She was not sure if there was presidential discretion. At the time she had written to the Speaker to express her disquiet. She had not received a reply.

The Chairperson said that there was a problem even with this. The Act referred to "no fewer than five". The interim Constitution had provided for eleven appointments. The final constitution was silent. It was parliament's role to propose the nominees, but the President could then seek assistance on the names. Mr Kollapen had pointed out that the term of office of commissioners ended in September 2009. He noted that as all commissioners had served for two years there could not be continuity of the people, but he agreed that the appointment processes must begin at least six months in advance of that date and Parliament should be put on notice to treat the matter seriously.

Mr Kollapen clarified that he did not mean continuity of the body of people but of institutional memory and expertise.

Ms Johnson moved on to the relationship with other bodies. The system had been criticised as not effective. She asked for explanation.

Mr Kollapen said that as a state institution it wanted to be held accountable. There was legal accountability to parliament and a broader accountability to the public. SAHRC knew the constraints under which the PCJ functioned but SAHRC had to come to account once a year. The amount of time given to it was around one to three and a half hours. It was impossible to hold full accountability in that time frame. People did not know what the Commission was doing and were critical about its work. It wanted more quality time with Parliament. There was no regular arrangement about how it engaged, but it would just react to various requests from different committees. Last week it had addressed two different committees. Parliament needed to think about setting up a better-coordinated system.

The Chairperson asked whether there had been special hearings on any specific topics.

Mr Kollapen said there was a session on the equality legislation with a special ad hoc Committee. The other appearances had been before regular committees and mostly at their request, when SAHRC were told to report on certain matters.

The Chairperson said that there were 37 committees in parliament. He asked how many sessions had been held.

Ms Judith Cohen, Parliamentary Officer: SAHRC, reported that in 2006 the briefings had involved the budget, equality and disability, and women and children in prison. The Committee for Home Affairs had asked for a briefing on the Civil Unions Bill. There was a briefing on the equality court to the Ad hoc Committee. There were other engagements with parliament behind the scenes: for instance SAHRC sent a detailed submission on Sexual Offences and persons with mental disabilities that led to several changes in the Bill. Other engagements were ongoing.

Mr Kollapen noted that there was difficulty in attempting to streamline the interaction, despite an attempt made a couple of years earlier. It was difficult for parliament to coordinate it, and the Committees were all busy. SAHRC had tried to report on the economic and social rights in cluster meetings. Only a few took place. Last week he noted that the Commission was asked to give a special briefing on evictions, when it was the only institution invited. The right to Basic Education reports had been presented.

The Chairperson asked whether the Commission had considered making application to the Speaker. He suggested this should be a focal point in parliament.

Mr Kollapen said that this had not been done. In terms of the focal point SAHRC was engaged with the Office of the Speaker but many of the issues fell under the PCJ although some areas fell outside.

Ms M Matsemola (ANC) noted the importance of human rights and the fact that these affected all portfolio committees. She asked how SAHRC would pick up on all the human rights issues arising from the work of the Committee.

Adv Thipanyane said this was a challenge and that was why it was expanding the work to fully-fledged programmes to make better use of relationships with parliaments.

Ms D Smuts commented that for an outside institution to ask for a debate would be unusual. She was not sure how much it would achieve.

Ms Smuts noted that there had been a suggestion for a separate Portfolio Committee and wondered how this would be composed. She noted that perhaps it should consist of Chairpersons of other committees, with perhaps opposition spokespersons. She believed that this needed to be fully conceptualised. She was interested to hear that the cluster committee idea had not worked.

Mr Kollapen said that the idea was to establish a committee in synergy with the mandate of the Commission. The totality of the work would need to be dealt with by one committee. That would not exclude them from being involved in others, but the accountability would lie to that one Committee. He was not sure whether it was possible. It should also be central to the appointing process. At the moment there was merely an ad hoc committee to deal with appointments. He asked whether this was practicable.

The chairperson said there were 37 committees. To have representation on the new committee meant that there would be a need to have senior people dealing with diverse topics. This would take away a number of senior people from other committees. This was a practical problem. Parliament also sat for only about 180 days a year.

Mr Kollapen said that one could construct a committee without necessarily needing a representative from every other Committee, since only about 15 committees were directly involved with human rights matters on a regular basis. If the mandate were confined to engaging with Chapter 9s, the workload would be circumscribed. Even one full-day session would be extremely useful. There must be scope for a smaller committee, with a specific focus,

The Chairperson noted that these were tentative areas. The main question was whether parliament exercised an effective oversight, and SAHRC felt it did not. He requested that Mr Kollapen send through any further thoughts on this.

Ms Smuts said that she had originally rejected the suggestion of a separate committee but now felt it may have merit.

Ms Johnson moved on to the relationship with other Chapter 9 institutions. She asked about the functioning of the Chapter 9 Forum.

Mr Kollapen noted that there was a forum of Chapter 9 Institutions and there was a document of objectives, rules and procedures. It was a SAHRC initiative. It dealt with political issues rather than objective matters. It would work on matters such as how to put together events, reviews and so forth. The cooperation between institutions had happened in an irregular fashion. In part the problem was how institutions interpreted their own mandate. There was no set norm, as there were different methods of operation. If there was a problem SAHRC Commissioners would try to drive and find out what it was, but this did not apply in other institutions.

The Chairperson asked whether there was a formalised relationship and why the institutions could not share some issues.

Mr Kollapen replied that there was not. The only formalised institution was perhaps the Judicial Inspectorate of Prisons, but that was at a different level.

The Chairperson noted that the Committee would be looking at efficacy. Nearly all the bodies had provincial offices. There were no real answers about the value. He asked why there should perhaps not be a one-stop office. He asked if this had been discussed.

Mr Thipenyane said that the Gender and SAHRC Commissions had spoken about this in Cape Town and when the SAHRC had tried to open an office in North West it had asked if it could share. The problem was that the institutions had long term leases. The idea could be explored, but would involve implications on budget, PFMA and independence.

The Chairperson noted that there was reference to overlap with other institutions. There were some general areas outlined. He asked if SAHRC, in referring a matter, would check what happened, and whether there were statistics on how many matters were referred, or any follow up. He noted that in a particular quoted case, a woman had "fallen through the gap" in that none of the institutions that she had approached had helped her. He pointed out that there was a legal obligation to maintain records.

Mr Kollapen said the point was valid because shuttling people between various institutions could not work. If that were so, the person would just lose interest. Many of the complaints were referred out elsewhere because they did not form part of the mandate of SAHRC. Here, it would not necessarily follow up because it was not in the mandate. The fact of non-cooperation was something to look at. There were issues around privacy too. That was one way of avoiding forum shopping. .

Mr Thipenyane added that there must be clarity about the parameters of the relationship. There was a forum among CEOs, involving inter alia a joint public hearing and in December an annual lecture. They worked together but there was a challenge in following through everything.

Mr Kaya Zweni, Director Legal Services: SAHRC, said that the statistics were available and could be furnished to the Committee.

The Chairperson asked whether there were follow-ups. It was possible that other institutions did not have such efficiency as the SAHRC.

Mr Zweni said the direct referrals would be followed up, because SAHRC would be seeking a report from those institutions. Indirect referral was an area where SAHRC would refer because the matter fell squarely within another mandate – such as the Commission on Gender Equality (CGE), and in this case the other institution would run with the matter on its own.

Mr S Dithebe (ANC) said that one of the purposes of this Committee was to establish the resources of the Chapter 9 institutions, given the scope of their mandates. There was a view that said women's rights were human rights. He enquired whether it would it be correct to say, given the difficulty in formalising the relationship with CGE and others institutions, that SAHRC could undertake the activities of the CGE as well.

Mr Kollapen said that human rights were recognised as indivisible and it was almost impossible to say that SAHRC would not touch upon certain rights. Before the Gender Commission was established SAHRC had taken up such matters. One of its first cases involved the challenge to the legislation that only married women should have access to in vitro fertilisation. The Commission had the ability to take up these issues. That was not necessarily reason enough to allocate the function to it.

Mr Thipenyane said that there were other gender issues, where PAIA or the socio economic rights might require SAHRC to intervene to ensure that women were not deprived of their rights. Linked to that was section 28 of the Equality Act. Because of the mandates SAHRC had tried not to dwell too much in one area. Gender issues could indeed be human rights issues. However, this involved the girl child too. A matter could involve either one institution or the other, looking at a problem from slightly different focuses, which was perhaps an argument for the institutions to work together, rather than have separate hearings.

The Chairperson agreed that conceptually it was impossible to make a separation. However in the practical application if some people fell through the cracks that was a problem. The Human rights arena was a huge one.

Ms Smuts asked whether it was the experience of the CEO that there must be a measure of decentralisation to make the mainstreaming work.

Mr Thipenyane replied that that was the position. However, from the practical point of view, people were unable to straddle all issues and therefore certain areas were suffering simply because there was not a strong champion. A coordinated position should be used to deal with all the areas. There was still an idea that when human rights activities were more mature, the various organisations and activities could come together. At the moment the separate applications were simply practical for the organisation.

The Chairperson noted that in education when youth and gender desks were established people rapidly lost interest. The radical view to mainstream the matters would be further discussed.

Ms Johnson said that many position papers had been received, and she enquired that if human rights were indivisible, then what was the possibility of having a "super Human Rights" body.

Mr Krish Govender, Commissioner: SAHRC, said that whatever body flowed, the sum total of the power must be equal to all the disparate bodies. The structure used would be less important than the mandate over all.

The Chairperson said that the bodies would have to deal with the terms of reference and what was the efficacy of the system.

Mr S Simmons (UP) asked if the independence of the commission compromised as a result of budgets and should consideration be given to the collation of the budgetary allocations. He asked also whether the allocations should be on the parliament vote and not on that of Justice and Constitution Development.

Mr Thipenyane said that any expenditure in terms of the SAHRC should be appropriated by Parliament. The current arrangement was not satisfactory as money was received through the DOJ and NT. SAHRC was not sure whether DOJ understood the budget. The feedback was simply that a certain amount had been received, without any explanation. A few years ago SAHRC had appeared before the Joint Budget Committee but was told Parliament did not have expertise to deal with the budgets. In his personal view, the budgets did not undermine the independence of SAHRC.

The Chairperson asked for details about the budget process.

Mr Thipenyane said the appearance before the Joint Budget Committee was unusual, and it was specifically in relation to the socio economic rights question.

Mr Kollapen explained that the Commissioners would be involved during the strategic planning exercise. The Commissioners would indicate their plans and ask the CEO to draw a plan and budget to get there. SAHRC had a focus and allocation and the Commissioners would adopt and approve the budget. It could then go to Treasury to ask for additional MTEF allocations for the next three years. The Director General of NT would inform the Director General of Justice what amount was approved. .

The Chairperson asked about the budget from the DOJ point of view.

Mr Kollapen said that SAHRC would submit the budget as approved by the Commissioners to Treasury, who would submit it to Cabinet and there the Ministers would debate. SAHRC fell under DOJ as a line function and the budget was under DOJ. The Minister of Justice would also make input. The Treasury officials only recommended an amount but ultimately it was a political decision. DOJ would then inform SAHRC what was approved.

The Chairperson summarised that the Ministerial Budget Committee would effectively decide. SAHRC was unusual in having access to NT.

Mr Keet explained that the budget as adopted by the Commissioners was already built on a certain baseline as allocated at DOJ level, so it had to be based on that framework. The SAHRC would not have any input on that baseline. When making presentations it would try to get the baseline allocations moved.

The Chairperson said that there were two different perspectives being taken on this. He said that the Committee would return to this issue.

Ms Johnson said SAHRC had mentioned as a constraint the fact that lines of authority were not clear between commissioners and the CEO. She asked how that issue was to be resolved.

Mr Kollapen said that there were some issues that brought conflicts to the fore. There was now a performance agreement speaking to the outcomes it sought to achieve. The SAHRC had received a presentation by the Institute of Directors on corporate governance. The commissioners were full time and they did get involved n the operations of the Commission. They undertook work as legal and education officers. There should not be two centres of activity. Now there had been a decision that the Commissioners met every week, and also met with the CEO every two weeks. All Commissioners had voluntarily entered into performance agreements. There was no obligation to do so, but they had decided this was useful. There would always be differences of opinion, but it was important that the roles must be interpreted for the good of the SAHRC. .

Adv Thipanyane said that the PFMA had a flaw that effectively said that the commissioners could not overturn a decision.

The Chairperson said that in 2004 there was an internal investigation. He asked what would happen if Commissioners did not come to work. In 2004 about 30 people had resigned and there were problems with the CEO and the staff.

Mr Kollapen stated that the SAHRC took a decision to appoint an independent investigator to assist it to understand a serious concern. She produced a helpful report. There was no meeting between the Commission and the DOJ, nor a request for one, so he did not know what the reference by the Chairperson meant. He explained that at the time he had written to the Portfolio Committee to explain what was happening, because there were some media reports that he wanted to clarify.

The Chairperson said that outside bodies could not micromanage because of the independence of the institutions. He asked what kind of institutional arrangements there were, without involving the CCMA, in a difficult situation and what was the role of the Commissioners.

Mr Govender made the point that from the outset the legislation was not in agreement because the Constitution said the Chairperson was the Head of the SAHRC. That was not the standard view across the Board. Some functions were believed to reserve to certain parties, and the distinction between making policy and acting hands-on was not clear. A compliant against the legal department meant that there would be direct involvement by Commissioners, as they were all accountable, regardless of line function.

Ms Smuts noted that in terms of PFMA there might be lack of definition. The CEO would speak to Treasury in terms of the PFMA and reported to Parliament. However the Commissioners were accountable. She asked if there should be redefinition of the PFMA to take the constitutional institutions out.

The Chairperson said the PFMA should apply to all. The line of authority should be clear. Accountability for finance was different from responsibility for activities. He asked if this was why an outsider had been brought in to assist the SAHRC.

Mr Kollapen said that that was part of the reason, but that SAHRC had to be careful because the ultimate responsibility lay on the chairperson and the body of the Commissioners. How they regulated and delegated internal functions was another matter. For instance, he would not interfere with the CEO's decision to discipline staff, except that there was ultimately a right of appeal to him as Chairperson.

The Chairperson noted that this lacuna was unfortunate because the central role of the Chairperson was to give public presence. There could not be one proposal to fit all eleven bodies. The variation was so intense that perhaps there should be a number of rules.

Ms Johnson asked whether the Commissioners were equal in status and what would happen if a Commissioner failed to perform.

Mr Kollapen indicated that the hands of the remaining commissioners were tied. Often the level of under performance was not so severe that the commissioner could be relieved of his or her duties. Apart from the voluntary mechanisms there was certainly a gap.

The Chairperson noted that then questions of leave could become difficult. He said SAHRC would not necessarily want to follow the King Report in its entirety. In the final result Parliament could be asked to intervene. He asked what happened if there were problems between the commissioners and the full time staff.

Mr Kollapen said that the CEO was the link to staff and the SAHRC would encourage staff to go though their line manager to the CEO, and only in the case of an appeal to Commissioners. The same was true of external complaints lodged with the Commission against a member of staff. If the compliant were against the CEO it would come to the commissioners.

The Chairperson asked what was the relationship of Head Office to the Provincial offices in terms of reporting lines and communications.

Mr Thipenyane replied that from January 2006 the reporting channels were outlined strictly. The head of a provincial office had three main areas and would report to the relevant head of programmes. There were monthly management meetings. The provincial officers would, in terms of PFMA, submit quarterly reports to the commission in line with the strategic plan.

Mr Kollapen added that a team of commissioners had begun to do dedicated provincial visits. Half the team would go to the office and others would question key role players to get a sense of how well the province was functioning. Senior staff were encouraged also to accompany them on the visits.

The Chairperson asked why Kwazulu Natal had the largest population but came only third or fourth in terms of complaints.

Mr Kollapen also wondered if the number of complaints was an accurate assessment of the work. Some of the provinces were urbanised in their focus and could not get into the rural communities In Limpopo the complaints would only result from face to face interviews with complainants, as they would not write in.

Mr Govender added that SAHRC would have expected the number of complaints to be higher. The Commissioners put pressure on the offices to ensure that they were effective and believed that there was capacity to handle more complaints.

The Chairperson suggested that since Natal was largely rural the focus might need to change to deal with different problems and special issues.

Mr Thipenyane said that there was a policy to try to go out to rural areas more. The other challenge was how to get to the people. There were many education programmes but the legal officers were mostly office-based rather than travelling. There was also a monitoring and evaluation unit to make sure that there was proper reach.

The Chairperson said that there was a perception that there was better service at national than at the provincial offices. There were more senior people and better staff. There was also the feeling that not enough was done on racism and children.

Mr Kollapen said that there was a better accumulation of personnel at national offices, with more access to facilities. The location of commissioners perhaps should be put on the agenda, to consider whether all commissioners should be based at one centre or at different offices. There were advantages and disadvantages to both.

The Chairperson said that this might restrict the choice of commissioners. Secondly it would give a perspective that was local rather than national. The problems varied from one province to another.

Ms M Matsomela (ANC) asked how the provincial officers would liaise to ensure that the different aspects of human rights were receiving the necessary attention.

Mr Kollapen said that SAHRC had briefed provincial legislatures on the role and work of the Commission. There would be further parliamentary liaison at the provincial level and the approach would be to work with the provinces in terms of their possible oversight role. In many areas there was an absence of electoral representatives and working with the representatives would ensure that SAHRC could assist them in their public role.

The Chairperson stated that strategic discussions could be held in Pretoria but they were training people to deal with delivery.

Mr Kollapen explained that the socio economic rights mandate could be used both for reporting and in the site visit. For instance SAHRC might find that a water project had been abandoned and that although people were paid there was no connection. In a rural hospital only 8 out of 32 posts were filled. The casualty doctor might not be there. These types of issues had to be brought to the attention of the Premier and elected representatives to ask them to address the issues. There was a willingness to look at it, but SAHRC had not yet really tested the follow up, monitored their recommendations nor used "the shame factor".

The Chairperson wondered if the public really felt the impact of the provincial offices. He was also worried that in certain areas the Commission seemed not to be active enough. He specifically asked about racism, child abuse and child violence. He asked if these issues were systemic or were dealt with case by case.

Dr Majodina said that the Commission at inception decided to devote attention to racism. It had hearings and national enquiries as well as a national conference on racism. There was a Millennium Statement to highlight what needed to be done. SAHRC had participated in a World Conference. Civil societies wanted the commission to meet the national programmes, and the World Conference put the focus on government to come up with action plans and programmes. The DOJ should house the National Secretariat against Racism. There was some doubt whether SAHRC should have taken up the mandate. In its education programmes there was inclusion always of racial issues, including access to colleges. Since the Promotion of Equality and Prevention of Unfair Discrimination Act it had approached all work on equality on the three main grounds. It was possible that racism had fallen away from the main focus. She noted that the legacy of apartheid had resulted in structural and systemic racism, which needed a different approach from a case-by-case situation.

Dr Majodina commented that with the equality courts having been set up she was surprised and disappointed that they were not being used.

The Chairperson pointed out that people would only use the courts if there were consciousness and support of the community and country and the Commission. These kinds of matters affected the dignity of people, and they did not necessarily want to share the slights with others. Most racism occurred in the communities and was quite subtle. It was artificial to say that all matters should be referred to the equality court. The SAHRC should have leaflets put in the post offices and other public places so people were empowered. This would also education the perpetrators.

Mr Kollapen noted that SAHRC would not only deal with this through cases but their role outside the courts must also be recognised. People were grappling with the issues of belonging. There was a debate about including defence force names in Freedom Park, and the de la Rey song had raised a whole issue of belonging. The suggestion to expand the campaign through community radio campaigns and the like was useful.

Ms Smuts was interested to hear that the focus had perhaps moved slightly away from racism alone. She asked about the systemic phenomenon, and whether the policy of black economic empowerment had been considered, both through the Act and the Charters. Under the Constitution gender and racial discrimination was dealt with in the same way, yet under BEE there was no special consideration for women. She asked if there was any investigation into whether black economic empowerment was discriminatory, in terms of race or gender.

Dr Majodina said SAHRC had not looked at that, but since the equality legislation there was a range of discussions which could, but had not yet, cover BEE and its implications.

The Chairperson felt that society still showed concrete systemic discrimination. It was not enough to try to reform parts without looking at the larger issues. He asked what was being done about children.

Mr Thipenyane said that there was some focus on child rights but perhaps not enough. Last year a child rights coordinator had been appointed, who would also look at disabilities.

Mr Kollapen added that work had been done on sexual violence and on school based violence and there was a focus on children in quality of school education. Although these investigations were not named specifically as studies on children, they certainly had children as a major focus.

Mr Wessels noted that the coordinator was assisting the SAHRC in drafting a policy on child issues. There was a huge challenge. The collapse of the schools' feeding scheme, initiation procedures, violence at schools all played a part. At time religion and custom must give way to the priority of human rights. Often in initiation and tribal practices there would be psychological scarring and it was noted that not all African tribes held such ceremonies, so that there was not a valid argument that it was something that should not be interfered with. Human rights issues also were prevalent in the lobola custom. Female circumcision was another area needing attention. -

Adv Thipanyane said that perhaps the HIV projects should also focus on these issues. The SAHRC was having dialogues and the violence against children would be dealt with.

The Chairperson stated that new issues were emerging all the time. The issues of children at initiation schools meant that there should be relationship with the SAHRC, the Commission for recognition of cultural rights and the National House of Traditional Leaders to discuss how the country could recognise cultural practices without causing harm and hurt to the vulnerable children. There was also the question of whether children were at liberty to refuse to take part in the ceremonies, and how they or family - usually mothers - who took them away would be ostracised by the community. There was overwhelming social pressure. Freedom of choice was important.

Adv Thipanyane noted, in relation to the visibility of the SAHRC, that about R2 million had been invested in e-learning focusing on PAIA, the Equality Act and other issues. There was an increasing number of hits linking to information on the website.

Ms Johnson asked about disclosure of financial interests, and whether there was a policy for commissioners.
Mr Kollapen said there was a disclosure form to be completed where Commissioners served on other Boards. There was a standard practice also that Commissioners should not earn fees outside of their work for the Commission, and so far where fees had been earned on writing a book or paper or delivering a lecture the fees accrued to SAHRC. It was possible to consider payment for private time but then one would have to take into account whether SAHRC resources such as reference material or computers were being used.

The Chairperson asked whether Commissioners could belong to NGOs.

Mr Kollapen said the matter was raised in a meeting held with the Deputy Minister of Justice. The question of independence did not have a definition attached to it. By sitting on an NGO the Commissioners could add value to the NGO as well as getting a better idea of what was happening in civil society. Mr Kollapen had also been asked to serve on some government forums, as he was considered to add value. If there was a rule to prevent membership of NGOs it would have to apply also to Correctional Services panels and the like, and this might be self-defeating.

The Chairperson noted that belonging to too many other organisations might fracture the work of the Commission since all Commissioners acted full time. He asked if the disclosure rules applied to staff.

Mr Kollapen replied that they were obliged to disclose interests. They were not permitted to do additional work without the express permission of the CEO.

The Chairperson asked if there was a policy on gifts.

Adv Thipanyane said that the policy on this would be developed further, and would consider such matters as conference handouts.

Ms Johnson asked how SAHRC would ensure that people were aware of the Commission. She noted that the 2003 statistics showed that about 60% of South Africans did not know of the human rights commission or the services offered.

Mr Kollapen replied that this report had in fact emanated from 200. He agreed that more should be done to raise awareness of the Commission. He added that the Commission was selling itself short and the civil society advocacy programme had done an assessment of their media coverage and had concluded that the Commission was not doing enough advertising. SAHRC had responded to this by launching a magazine, which was currently not being distributed, but SAHRC was working on resuscitating the project. He added that the most rewarding fact was that the Commissioners went into communities and talked to them. SAHRC had decided also to supplement the communication and media staff.

Mr Tom Manthatha, SAHRC Commissioner, added that the real question was how to apply human rights to the needs of the society, since, until they could do this, their work would be no more than churning out booklets.

The Chairperson said that with rampant child abuse and males feeling disempowered by assertive women he felt that there were not enough human rights structures.

Ms Smuts remarked that the Commission had done remarkably well in terms of their profile and the work that they did. She then asked if there was ever confusion over the name, which had been changed due to too little recognition.

Adv Thipanyane replied that in the last two years SAHRC had worked hard in building and branding the organisation and were so often in the public eye through the media that people were more aware of the organisation. It was not going to change the brand.

The Chairperson remarked that the fact that 50% of South Africans were now aware of the SAHRC was remarkable.

The Chairperson asked SAHRC to explain what a performative complaint was.

Mr Kollapen replied perfomative referred to an instance where there was lack of performance so that the public was not properly taken care of. He cited the examples of a person phoning and the telephone being left to ring numerous times before being answered, or where a person was not dealt with the proper compassion. The other type of complaint was a legal complaint and these were used more as an appeal.

The Chairperson asked for the number of complaints being carried on to the next year.

Mr Zweni replied that SAHRC carried on average about 150 cases to the next year. Recently, they introduced a three-month frame to complete all the cases that were referred to them.

Mr Kollapen added that the civil society represented the non-pubic aspect of society. The SAHRC had recognised some of the limitations of this alone. In terms of section 5, SAHRC had been working with other bodies. There were some communities that were functioning well, and the parliamentary liaison committee was functioning effectively. SAHRC had now constituted the committee for the elderly that advised them on some issues, and this was a way of working with the civil society. SAHRC had also worked with civil societies, for instance when litigating with Legal Aid Board and running campaigns with the refugee consortium. These approaches seemed to be doing well, and it was not certain whether they should be formalised.

The Chairperson asked how SAHRC established the framework given in section 219 and he asked what section 237 meant and how it applied to them.

Mr Kollapen replied that SAHRC had used this when dealing with socio-economic rights in requesting information from organs of the State and giving them time frames to provide the information.

The Chairperson asked if the Commission had an obligation to give a speedy reply to any complaint lodged.

Mr Kollapen replied that any person who worked for the Commission had an obligation to do their duty diligently. This did not refer only to the Commissioners but was an overarching constitutional obligation upon everyone.

The Chairperson asked if SAHRC had ever worked with the prisons systems.

Mr Kollapen replied that SAHRC's work with prisons was very limited but currently it was working with prisons on the issues on the conventions against torture. It had worked before with prisons, and had produced a report on conditions in prison. It then worked with the Judicial Inspectorate of Prisons and had referred a lot of work to it. SAHRC had also worked with them to reduce the number of awaiting trialists with measures like R1000 bail measures.

The Chairperson asked if SAHRC could return to the question of the finances and the budgeting process.

Adv Thipanyane replied that the procedure for the government-funded money was that SAHRC appeared before Treasury around October with a submission of the baseline amount they wanted to change. It also made a copy of the same submission to the DOJ as a matter of courtesy. It then appeared again before Treasury to justify and explain the submitted amount. SAHRC were later informed by the DOJ of the amount of money allocated. However, Adv Thipanyane was now informed that the practice of appearing before Treasury had stopped, and so SAHRC would simply be informed of the amount it would be given. The problem with this was that when Treasury had been asked to explain on what basis the allocation had been made, it was clear that Treasury were not aware of the nature of their work. He added that last year they had been most disturbed when receiving the allocation from Treasury to note that was dated on the day before SAHRC had appeared, which raised doubts whether the appearance was likely to change matters.

The Chairperson asked about the relationship with the Minister and Cabinet.

Adv Thipanyane replied that he was not sure under whose direction he fell, and therefore could not answer, and moreover, there seemed to be confusion. He had received a letter that stated that the Minister of Justice was his Executive officer, but the Minister's office was uncertain on this too.

The Chairperson asked where SAHRC saw itself as fitting into the picture. It was not an organ of state, nor governed by corporate governance.

Adv Thipanyane replied that before a body could be determined an organ of state the particular organ should have or be performing state-involved activities. He added that any state involvement tilted the matter hence Chapter 9 institutions would even be different from, for instance, the universities, who were created by a statute.

Mr Simmons remarked that the SAHRC was funded by the Department of Justice and Constitutional Development through a transfer payment.

The Chairperson remarked that this issue had been dealt with and did not require further elaboration.

Ms Johnson remarked that the number of complaints SAHRC received had stabilised. The budget rose around R4 million every year. She then asked if this meant that the money was going to be used for more work programmes, or whether it was being used for administrative issues.

Mr Kollapen replied that personnel expenditure was the reason for the annual increase. However he reminded the Committee that SAHRC was also quite small. Out of the total R1.7 billion that was allocated to the Chapter 9 institutions SAHRC received only 2% of the allocation in the 2005/2006 financial year.

The Chairperson remarked that the budget for the SAHRC had doubled over 2002/03 to 2005 from R21 million to R41 million. He noted that there must be a proper sense of proportion, especially in comparing themselves to parallel organs such as the CGE.

Adv Thipanyane replied that the approach was not to complain about money, but to note that there had been an increase in the mandate set out in the equality legislation over the years.

The Chairperson remarked that organs that were efficient deserved the money. Quality of service would result in more allocations.

The Chairperson requested SAHRC to explain more on the additional funding on page 44 of its report. In particular he enquired if there were any conditions attached to funding.

Adv Thipanyane replied that although this fact was not listed in the report to the Committee, the Annual Report contained a noted that all the money received had to be audited by the Auditor General. He further apologised for the oversight and said SAHRC would make the information available to the committee.

The Chairperson asked if the money was earmarked for anything, or if any other conditions applied.

Adv Thipanyane replied that SAHRC held the view that it should use as little donor funds as possible. SAHRC did not accept any conditions attached to the funding, as this would undermine its independence. It only applied for donor funds within the strategic plans.

Ms Johnson asked if there was progress with Treasury over the PMFA as one of their recommendations was that the PMFA should be reviewed and the weak areas amended.

Mr Thipanyne replied that SAHRC had a discussion with the Auditor General (AG) who had enquired why SAHRC had not supplied the AG with financial statements. He informed the AG that it was not mandatory for the Commission, according to the PMFA, to submit any financial statements and when they did so this was done out of courtesy. SAHRC had raised the issue of the flaws in the PMFA, but thus far not in any official manner that would require a response.

The Chairperson noted that he did not see any reports that showed periodic research to ensure that South African law was in line with the major conventions.

Mr Kollapen replied that SAHRC interpreted the constitutional mandate to mean that the South Africa Government had the responsibility. SAHRC did produce a report that was presented at the Geneva Convention. Whilst it could do this it did not think that it should do this for every research request. SAHRC thought that it was not its duty to implement any Convention recommendations when the government was already dealing with the issue internally.

The Chairperson asked why SAHRC assisted the foreign bodies when it was clear that it had no basis through the statutory mandate to do this.

Mr Kollapen replied that the Commission had enjoyed some international fame and was often invited to help with issues of a technical nature or a personal exchange. The Commissioners believed that this was a constructive role.

Adv Thipanyane added that SAHRC had observer status on some international bodies and hence were obliged to go wherever requested, which might include the attendance at meetings.

The Chairperson asked if SAHRC was not spending too much time making international trips

Mr Kollapen responded that SAHRC would try to be very circumspect about international travel. It received many requests but if it took up all requests this would mean that Commissioners would be out of the country every month. They therefore chose carefully. Visiting delegates would take up their own costs. SAHRC would merely show them the workings of the office.

Adv Thipanyane added that out of a budget of R55 million less than R500 000 was used for international travelling.

Dr Majodina added although SAHRC was mindful of its external obligations it had decided rather to concentrate more on its own internal situation.

The Chairperson remarked that even if the travelling costs amounted to R500 000 this was not a small amount.

Mr Kollapen replied that to quantify the issue SAHRC had decided that no Commissioner should travel outside the country more than once a year.

The Chairperson remarked that the problem with the Organisation of African Unity (OAU) had been that although most countries had a body dealing with human rights, they did not have the number of other bodies, such as CGE. CGE had raised the point that they also wished to attend as observers at international meetings.

Adv Thipanyane commented that last year SAHRC had tried hard to have the CGE awarded observer status but all the other African human rights Commissions had refused, raising the multiplicity of bodies and claiming that there should be only one international body.

Mr Simmons asked if staff loans were permissible.

Adv Thipanyane replied that these were given and the Committee should be aware that SAHRC had never had a qualified audit. The only problem arose as the loans were not taxed enough, and it seemed that the personnel were using them as a soft loan. That issue would be redressed. The loans were meant for emergencies and were small amounts that could be repaid in three months.
The Chairperson asked why in the legal services unit there was a vacancy rate of 36%. He commented that there were thousands of unemployed lawyers in the marketplace.

Mr Keet replied that the vacancy rate was 9%.

The Chairperson remarked that that may apply to the whole Commission. He felt that this obscured the real effect in legal services.

Mr Keet replied that at the present moment SAHRC did not have any department that had a vacancy rate beyond 10%, because of the restructuring they had done, and the huge recruitment drive at the end of last year. The only vacancy rates that were going to appear were those that would be vacant at the beginning of the financial year.

Ms Smuts asked if SAHRC could imagine a situation where they might subsume other smaller bodies as SAHRC was considered the strongest of the human rights bodies.

Mr Kollapen replied that this would definitely bring conceptual challenges as the SAHRC looked at the notion of individual rights, whereas the rights of, for instance, a linguistic community would be somewhat different. The challenge would not necessarily be insurmountable.

The meeting was adjourned