A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
15 May 2007
SOUTH AFRICAN HUMAN RIGHTS COMMISSION STRATEGIC PLAN AND BUDGET 2007/08
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
SAHRCPowerpoint Presentation to Portfolio Committee
Opening Remarks of Chairperson, SAHRC
SAHRC Strategic Business Plan [available at www.sahrc.org.za]
SAHRC ICT Developments Powerpoint presentation
SAHRC Strategic Plan 2007/08 Powerpoint presentation
SAHRC Annual Report 2005/06 Powerpoint presentation
SAHRC Annual Report 2005/06 [available at www.sahrc.org.za]
SAHRC 2006/07 Annual Report Highlights Powerpoint presentaion
The South African Human Rights Commission briefed the Committee on its vision and mission, achievements over the past year, and problems currently being experienced. The lack of an enforcement mechanism, coupled with failure by many government departments to appreciate its function and respond to it until subpoenaed had been raised with the Ad Hoc Committee on Review of Chapter 9 Institutions and remained a problem. It requested the Committee’s assistance in moving the appointment of new commissioners forward and in hastening the slow progress in amending legislation. It was hoped to increase interaction with Parliament.
The activities of the Commission in 2006 were outlined. Its three focus areas were complaints, education and monitoring. Labour matters and arrests were most frequent complaints. The activities under each programme were outlined. There had been 57 interactions with parliamentary committees. The Commission needed to be able to assess the impact of its interventions. It would be moving to a progressive reporting system. The breakdown of the budget showed steady increases, with the current baseline allocation at R55.2 million. The Strategic Plan for 2007 included the additional area of freedom from crime and violence which was reflected in the recent conference on crime and human rights. The restructuring was tabled and special programmes were highlighted.
Three presentations were made on the use of ICT in the complaints, monitoring and education fields. Detailed charts and information was tabled, with practical examples of how the systems worked.
A further presentation outlined specific challenges in attempting to implement the Promotion of Access to Information Act. These included the ineffective appeal mechanism, the culture of secrecy, and the cost of exercising the rights through the High Court. Non compliance with Section 32 remained a further challenge. The Commission did not have the facilities to continue to receive manuals from private bodies under section 51. The Commission requested the Committee’s help in amending Regulation 187, passing the Rules to allow Magistrate’s Courts to hear the matters and setting up an Information Commissioner.
Members discussed inadequate responses and lack of understanding by government departments, and the need to instil recognition that the Commission fulfilled a non-adversarial role and must be respected. Further questions concerned the Commission’s findings on crime, reports that were not reaching the Committee, and the recent matter involving a Minister who challenged the Commission’s authority. There was a long discussion whether the Commission should be given enforcement powers, and how best to strengthen relationships with Parliament. Further questions were asked on the work around racism and xenophobia, focus on the corporate sector, evictions of farm workers, and the possibility of discussions with the Legal Aid Board to explore a way to deal with civil matters. Members questioned the purpose of an Information Commissioner, the challenges to the subpoena process raised by Department of Home Affairs, the lack of functioning of the equality courts, the matters of emphasis in the last audit report, explanation of the policies in regard to interest-free loans and staff advances, the internal audit function, whether the Commission had a litigation function. The Committee pledged support to the Commission.
South African Human Rights Commission (SAHRC): Briefing
Mr Jody Kollapen, Chairperson: SAHRC, indicated that all the Commissioners currently serving on the Commission were present, as this was considered to be a most important meeting. SAHRC sought to be proactive while seeking to change, and its consolidation and entrenchment were apparent over the last year. The Ad Hoc Committee on Review of Chapter 9 Institutions chaired by Professor Asmal ("the Asmal Committee") had given the Commission the opportunity to engage further with Parliament and the engagement had been constructive. The report was eagerly awaited.
The Commission currently had one vacancy and hoped the vacancy would be filled soon. The terms of all current commissioners expired at the end of September 2009 and Mr Kollapen urged that new appointments should be made well prior to this date so that the old and new commissioners could have a time to work together to facilitate a proper hand-over.
Public enquiries were an exercise in accountability, and served as an important tool of public interrogation. Last year SAHRC held a successful enquiry into school based violence. The public interest shown was encouraging and the report was presently being completed. This year SAHRC had continued the enquiry into the rights to access to healthcare. A number of visits had been concluded and hearings would take place from 30 May to 1 June.
Other activities of the SAHRC included cooperation in the National Strategic Plan on HIV/Aids, convening a conference on crime and human rights, which was coupled with issues of crime prevention. New focus areas included HIV and Aids, crime and human rights, and business and human rights. SAHRC was continuing to go out into communities and interact. It would continue to meet with and liaise with government. Six periodic reports had been given on socio economic rights and SAHRC would be tapping into existing research bodies.
Mr Kollapen indicated that while the primary focus remained at national level SAHRC would also be following up on international treaties and obligations. It hosted various international commissions, and had recently outlined its mandate to the Judicial Committee of the Pan African parliament. It was investigating human rights in farming communities and was keen to undertake work on human rights and racism. It was hoping to take forward the e-learning initiative. It would be continuing to function as a coherent entity. Following the recent hostage drama at the Western Cape offices SAHRC had had to reassess security.
Mr Kollapen stated that a continuing challenge was the fact that SAHRC did not have the power to enforce its recommendations, yet had to continue to seek answers to human rights violations. In order for SAHRC to remain effective Government must show correlating responsiveness. The level of responsiveness was currently inadequate and created an adversarial environment. The support of the Committee in addressing this issue, and in assisting with the filling of short term and long term appointments would be appreciated.
SAHRC was concerned at the slow progress of amending the legislation and regulations. The Commission had meanwhile adopted its own regulations. The conditions of service remained a matter of concern, as Commissioners had not yet received salary increments for the 2006 year, although these had been approved. The past year had seen an increase in interaction with Parliament but this could improve further.
The SAHRC was constantly reminded of the fragility of the democracy, the central role it played in maintaining democracy and expressed willingness to discharge the mandate and strengthen its work.
Imam G Solomons (ANC) asked Mr Kollapen to clarify his comment that the response of the government had been inadequate.
Mr S Swart (ACDP) asked for examples of the responses that had been considered inadequate, and indicated that a list of incidents would be useful.
Mr Kollapen said that complaints were received on a daily basis and any that showed a prima facie violation would be taken up and letters addressed to government departments. Those departments failing to respond would receive two reminders. Frequently no response was given until a subpoena was issued and a hearing convened. This led to delays of three or four months. The same was true when dealing with socio-economic rights reports. Here too the SAHRC had had to resort to subpoenas in order to force departments to respond. Although the power to subpoena was clearly given, SAHRC nonetheless considered it unhealthy to have to invoke this all the time. It would prefer departments to have an understanding that they needed to respond. Specific examples could certainly be provided.
The Chairperson commented that the subpoena route was open to the SAHRC but that the Committee could certainly write to the relevant Director General or Minister. However the real issue was that SAHRC needed to instil the recognition that SAHRC - or any other Commission - fulfilled a particular role, which was not necessarily adversarial but was aimed at improving service delivery. Some Commissions held the view that they should not involve government as a "stakeholder", as they were independent. This put a large rift between Chapter 9 institutions and departments. There was no reason why commissions, in her view, should not consult in order to create relationships and to create an understanding of how they functioned within the broad institution of government. In other countries similar institutions was in fact part of departments.
Mr Kollapen said that SAHRC had tried to involve a wider range of institutions, and had tried to state what was required and what it was trying to achieve. This aspect could be looked at again.
The Chairperson said that a further issue was the wording of the letters sent out by SAHRC. She suggested that it would be beneficial to outline not only the complaint, but also the reasons why SAHRC were involved in the matter, its mandate and the routes that could be followed. It should give greater clarity as to the type of response required, and clarity on its mandates. The Committee would be happy to assist in cases where people simply did not respond.
Mr Karthy Govender, Commissioner, SAHRC stated that the letters were already being revised.
Mr Leon Wessels, Commissioner, SAHRC noted that by the time a person complained to the SAHRC he would have received no response himself from the relevant department. If the department officials were ignoring three letters from the SAHRC they were obviously not responding to the public. The sending of three letters and the issuing of a subpoena took further time. Only 10% of officials in fact did respond before subpoena. When they came to the hearing their legal representative would generally quickly settle the issue although it some extreme cases officials had even had to be arrested for failing to appear. He thought that even further action would be needed to inculcate the need for responsiveness.
The Chairperson agreed that changing the value system of the old bureaucracies was very important. However, she pointed out that the fact that so many did not respond until supported by the State Attorneys probably indicated that they did not understand the ambit of operation of the SAHRC. She repeated that more would have to be done to educate ordinary public servants.
Mr Solomons questioned the fact that SAHRC had sought support from the Committee and wondered if this might not compromise its independence.
Mr Kollapen believed that if the Committee, in its engagements with departments, could state what the problems were and stress the need to reply, this would not undermine any independence but would in fact assist the SAHRC to perform its functions.
Mr Swart said that crime was an important issue. He asked SAHRC to touch on some of the findings of the conference, particularly around social crime prevention.
Mr Kollapen replied that Mr Justice Sachs had commented that current developments had been positive. An interesting presentation had been made on the correlation between socio economic circumstances, weak regulatory systems, dysfunctional systems and crime. The understanding of the interlinking of all aspects would ensure that the public debate was more nuanced and balanced.
The Chairperson indicated that not many of the SAHRC reports reached the Committee. Given that there were hearings on a broad spectrum of issues, she suggested that SAHRC might want to fine tune how the reports were fed into the various Portfolio Committees.
Mr J van der Merwe (IFP) noted that the Commission had stated it had no power to enforce its recommendations. He noted that the Minister of Justice had allegedly been reported to the Commission for violation of human rights. The Minister had been asked to take certain actions. She disputed the right of the Commission to investigate, and this brought into question the authority of the SAHRC. He believed that a High Court action was now being taken against the Minister for a mandamus. He felt this was strongly indicative either that the Commission's role must be reconsidered or the legislation amended.
Mr L Landers (ANC) stated that Mr van der Merwe had raised a disturbing issue. He asked whose and what rights had been violated. He also asked how the Commission had arrived at its conclusion, and whether the violation was in respect of an individual or a group of people.
The Chairperson said that there seemed to be some disputes of fact. It had been agreed that the Commission and the Committee would be meeting with the Minister to try to deal with the issues and would report back. She suggested that the question not be answered at this stage.
Mr Joubert saw the SAHRC in a similar vein to the Auditor General and the Public Protector, with a role to balance the separation of powers. Clearly SAHRC lacked teeth and he asked what was really needed.
Mr Kollapen stated that the Asmal Committee was looking at this matter of enforcement. SAHRC was not a court of law and it was not suggested that it must necessarily have the power to act as one. A useful article had been written and brought to the attention of the Asmal Committee, which drew a distinction between coercive and cooperative control. SAHRC was not seeking powers beyond cooperation, but thought perhaps it should be made mandatory that responses to recommendations be given.
Mr Karthy Govender, Commissioner, SAHRC added that the separation of powers was vitally important. The Commission fitted somewhere between the executive and judiciary. Organs of state gave ancillary powers, and there was a further duty to carry out their constitutional mandates. Organs of state must respect the findings of the Commission unless set aside in the appropriate court forum. If these organs were unhappy about the legality of the findings then they must challenge this point. Findings should not be ignored as this would run counter to the constitutional obligations.
The Chairperson said that she took a different view. She thought it was wrong for organs of state to take the SAHRC's findings to court. The drafters of the new Constitution had recognised that the apartheid bureaucracy must be transformed. A system of checks and balances was introduced, but over and above this there was an attempt to introduce a new culture or value system, including mechanisms to actively oversee and rectify past imbalances. That was the rationale behind the Chapter 9 institutions, so that the idea was, from the inside out, to transform. The institutions were purposely set apart from State departments. Part of the problem was that SAHRC was perceived to be judging that something was wrong and needed to be corrected. It was this perception that needed to be changed. There was indeed a need for greater respect for the institution, which must be embraced by every department. If, however, SAHRC were to enforce decisions though the court, it would become adversarial in nature and would be seen as attempting to transform from outside. The cultures would not change overnight. There was a need for continuous debate. It was unfortunate that not many members of the public had engaged with the Asmal Committee.
Mr Swart agreed with these views. He stated that he was further concerned at the danger that departments would develop their own culture of not replying to anything until subpoenaed. He felt there was a need to engage actively with departments to try to deal with this.
The Chairperson added that perhaps there should be some follow up after the subpoena hearings to discuss with those subpoenaed what had gone wrong and to try to ensure there was no recurrence.
Mr L Joubert (DA) asked how far the appointment of new commissioners had progressed.
Mr Kollapen indicated that the terms of office for the current commissioners would expire in September 2009, but it had already been indicated to the Speaker that attention needed to be given to appointments now. All terms ended on the same date.
The Chairperson noted that budgetary constraints would make it difficult to fill the positions before expiry of the current terms. Although she understood the reasoning she thought the suggestion to run offices concurrently would pose greater difficulties. She suggested that perhaps the interviews should be done sooner, and SAHRC should work out some process whereby the new commissioners could be introduced to their new functions over a period of time, without them giving up their existing jobs. It would be useful to try to stagger the appointments.
Mr Kollapen stated that consideration could be given to appointing part-time Commissioners, and perhaps this could be included as an option in correspondence with the Speaker.
The Chairperson asked that copies of correspondence be sent to the Committee.
Ms C Johnson (ANC) asked how SAHRC would want to strengthen relationships with parliament. The parliamentary programme meant that it was difficult to engage as often as might be desirable.
Mr Kollapen stated that SAHRC received sporadic invitations to appear before different committees; sometimes in relation to reports, sometimes in relation to issues that the particular committee considered important. SAHRC would like there to be a substantive session of committees, which could also include government departments and civil society, to unpack reports as they were made. This would address the lacuna whereby recommendations simply were made but went no further. SAHRC had increased the time spent with this Committee but would like to interact also outside of the annual hearings and share what was being done. SAHRC was considering sending a quarterly e-mail newsletter to all parliamentarians to keep them abreast of developments and the work done.
The Chairperson agreed that this should be explored. The Committee had only one staff member and a huge legislative programme. It relied upon information brought to its attention as it did not have the capacity to undertake research and source reports itself. More regular reporting by SAHRC would add greatly to the capacity of the portfolio committees, and would have the added advantage that the Commission's hard work would find expression at a public forum. However, the Committee clearly could not interact on every issue. Urgent legislation or Constitutional Court findings tended to interfere with planned programmes. Most committees would not have time to engage with every report. If the information was not made available, it would not reach the committees. A more direct relationship might assist in having reports referred directly to committees, instead of merely being tabled. Reports should be conveyed through the Office of the Speaker, bearing in mind the limitation of resources and time. The Committee of Chairpersons might also be an appropriate forum.
Mr Kollapen said that, in hindsight, many reports had not followed this procedure.
Ms Johnson stated that racism and xenophobia still seemed to be very much a part of South African society. She asked how the SAHRC's new focus area of non-nationals would be developing.
Mr Kollapen stated that racism in the private sector was connected to the human rights obligations of businesses. Currently it tended to be confused with broad corporate social responsibility. That was not what human rights obligations were about. At the international level there were debates about whether business obligations should be voluntary or imposed. Dr Zonke Madonna, Deputy Chairperson: SAHRC, agreed that racism and xenophobia were strong current issues. The Commission had already decided to strengthen its interventions. Affirmative action policies were often being interpreted along racial lines. SAHRC was still in the planning stages, but was considering convening round table discussions on problems that were manifesting themselves at systemic levels. In regard to xenophobia, a co-ordinator had been appointed to deal with the issues of non-nationals, who were a vulnerable group needing to be mainstreamed in the protection and monitoring of the SAHRC. Steps had already been taken to enhance the work of the Commission to interact with civil society groups and in advocacy. More work must be done on migrants. The new coordinator was ,assisting the legal department in dealing with legal matters and complaints and undertook monitoring work over government departments, especially at places like police stations where violations tended to occur. SAHRC had also managed to persuade the City of Johannesburg to set up a pilot project of a Migrants Desk.
Mr Kollapen added that there was good interaction with Parliament and joint hearings had been held with the Portfolio Committee on Foreign Affairs. A report was on the website.
The Chairperson raised the issue of focus on the corporate sector. A previous meeting of this Committee had considered the position of farm workers on service contracts, who faced eviction when the contracts ended, leaving their livelihood and lives of their families at stake. She was pleased that SAHRC was looking at these rights.
The Chairperson indicated that there was ongoing discussion with the Legal Aid Board around the type of civil work being undertaken by the Board. The Board had recently increased its visibility and tended to be approached to assist with all kinds of matters that did not strictly speaking fall within their mandate, but where they felt compelled to assist. Many of these matters would more properly be handled by SAHRC as they related, for instance, to administrative justice. She urged SAHRC to hold discussions with the Legal Aid Board to investigate a possible system of referral. It might be interesting to see to what extent there could be cooperation and this would hopefully also enhance the public knowledge of SAHRC and assist in outreach.
Mr Kollapen noted that SAHRC had been doing work on evictions and the work on business would widen the understanding of the business community on its obligations. SAHRC already referred several matters to the Legal Aid Board but this was an interesting suggestion.
SAHRC Performance 2005/06 and 2006/07: Briefing by Chief Executive Officer
Mr Tseliso Thipanyane, Chief Executive Officer: SAHRC, tabled his full presentation but indicated to the Committee that he would not present all of it. He commenced his presentation on page 15 (see attached document) and focused on the performance and strategic plan.
SAHRC was aligned to, although not part of, the public service. The regulations had not been amended since May 1996 and SAHRC had had to adopt its own internal regulations.
The staff composition and number of established posts were tabled. .
Mr Thipanyane indicated that between 2005 and 2006 SAHRC did not have a head of finance, and a number of matters were not attended to, including the submission of monthly financial statements to National Treasury. SAHRC had during this period received an unqualified audit report but some matters of emphasis were raised. All the matters raised under the matters of emphasis had been addressed.
The activities under each of the programmes of SAHRC were highlighted, and the achievements were set out fully. Of particular interest was the intranet, which had been operational since 2005 and which assisted internal communication and coordination. There had not been a media officer, which had been problematic, although SAHRC had managed nonetheless to achieve fair media coverage. This post had now been advertised. A list of matters contained on the website was given and he noted that there was good exposure with the number of hits increasing. The Legal Services programme had litigated fifteen cases and held three public hearings. The number and type of complaints was summarised. Mr Thipanyane noted that unlike the Public Protector SAHRC had three focus areas: complaints, education and monitoring, and time was expended in all areas, Labour matters and arrests headed the list of the most prominent complaints. Work done by the programme on research and development included work on equality, work on the Promotion of Access to Information Act (PAIA), and work around parliamentary submissions, including submissions on law reform. There had been 57 interactions with parliamentary committees. The Education and Training Programme had made 954 education interventions in the past year. SAHRC still needed to be able to assess the impact of these interventions, as it was most important to empower people to access their rights. The target groups and the themes covered in the presentation were described. Full details were given on development of materials.
Mr Thipanyane briefly tabled the breakdown of the budget and said further details were contained in the Annual Report.
The baseline allocation for 2006/07 was R49.2 million, , rising to 55.2 million in the following year. With the coming into operation of the equality regulations SAHRC would need to request further funding from National Treasury. The breakdown over the programmes was tabled. It was noted that the website hits had now increased to 280 000 per month and media coverage was increasing. Coordinators had been appointed to focus on vulnerable groups. He indicated that the vacancy rate in this year was currently at 9.8%.
The various interventions were tabled by programme and in particular it was noted that Legal Services had conducted public hearings on violence in schools, initiation schools (in collaboration with the Commission for the Rights of Cultural, Religious and Linguistic Communities), the launch of the Right to Basic Education report. The key complaints were highlighted. There had been a research and documentation report in August 2006. Mr Thipanyane indicated that in future SAHRC would move away from an annual report to a progressive reporting system.
Another key highlight was the launch of the Deputy Information Officers' Forum. Members of the public experienced great difficulty in accessing records. This forum would help to instil a culture of reporting and facilitate SAHRC's regular communication with government departments, all of whom had a responsibility to be familiar with SAHRC requirements. A system of Open Awards was set up with the Open Democracy Advice Centre to ensure that the legislation was properly implemented. A survey had been made of government departments. SAHRC was also engaged with donors. An agreement existed with the European Union to raise awareness around human rights in three provinces.
Strategic Plan 2007 to 2010: CEO's Briefing
Mr Thipanyane indicated that the Strategic Plan for 2007 included the additional area of freedom from crime and violence which was reflected in the recent conference on crime and human rights. The Commission could not ignore the impact of crime on human rights.
The restructuring of the SAHRC was outlined, with three new programmes created and parliamentary monitoring being expanded to include treaty monitoring. The information and communications programme, including media communications, publications and work around PAIA were also important. There was a special programmes of community outreach and advocacy, with an additional appointment in this field. An additional coordinator's post had been created. The disability and child rights post was being split. The Equality Coordinator would play a more important role. The changed organogram of the Commission was tabled.
The remainder of the presentation was tabled, but was not discussed.
Mr Thipanyane indicated that the baseline allocation for 2007/08 would be R55 2 million. He gave a breakdown of budget over the last four financial years and a table of budgeted expenditure per programme for the next year.
Mr Thipanyane stated that in order to improve quality assurance, a monitoring and evaluation unit had been established, which conducted workshops. Currently the internal audit function was outsourced. SAHRC was considering having in-house capacity. Outsourcing meant that there might be identification of problems only on a quarterly basis.
Ms M Meruti (ANC) took over as Acting Chairperson
Use of Information and Communications Technology (ICT): Complaints procedure: Increasing services and effectiveness
Mr Sello Chiloane, Principal State Law Advisor, Department of Justice and Constitutional Development tabled a detailed presentation showing how the complaints procedure was followed. The first Complaints Handling Flow Chart indicated full details of matters such as where the complaints emanated, a check that it was not being duplicated, which office had jurisdiction, when the complaints were received and the dates on which action had been taken. The system also allowed for diarising so that the administrative staff would also be able to see that they were responsible to take out the file. Further details available on this system covered the provincial offices that had jurisdiction, the state of the complaint and the person dealing with it.
Collaboration with the Judicial Inspectorate of Prisons enabled certain details to be exchanged and the indirect referral process would enable SAHRC to monitor the status of complaints made by prisoners.
Once a complaint had been accepted it would be allocated to the legal practitioners. The workload of the individual legal practitioners was noted as well and this put in the correct checks and balances. Diary dates were included. Full details were noted of witnesses.
Only the Head or Provincial Manager could authorise closure of a file, and would have to check whether all processes had been followed. The reasons for closure must be fully stated and comments were required also by the Manager. Finally the Executive Management Screen, for monitoring and evaluation purposes, gave a full history of the case, including the dates and the file handlers.
Use of ICT: E-Learining Programme of SAHRC
Ms Victoria Maloka, Head of Programmes: Education and Training, SAHRC, displayed the introduction to the human rights portal that had been developed as part of the e-learning programme. The courses included instruction of PAIA, Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the Promotion of Access to Justice Act (PAJA). Until recently the training had been conducted along traditional lines of workshops or seminars, but e-learning would move to a new approach, building on blended learning methods, being self- directed but supported by coaching. E-learning was internet based, but where there was no internet, SAHRC would be providing a disc and a manual.
Course material was then put up and explained. She noted that the courses sought to be socially significant, educationally vibrant and technologically relevant. The screens were user-friendly. They indicated definitions, how the matters developed, what the destination should be and gave the opportunity to click on further links. There was also a self-test.
Implementation Challenges around PAIA
Mr Sello Hatang, Head of Programmes: Communication, SAHRC, indicated that there were several challenges in attempting to implement the Promotion of Access to Information Act.
These ranged from the ineffective appeal mechanism, the culture of secrecy, and the cost of exercising the right. It had been suggested that perhaps there needed to be an information commissioner to deal with appeals. Although officials might not intentionally be secretive, they were simply unaware that they were required to take decisions informed by the legislation. There were not currently rules on costs. Magistrates could not preside over PAIA matters, which then had to be referred to the High Court.
Non compliance with Section 32 was a further challenge, and, as previously mentioned, many public bodies would ignore the three letters and wait to have a subpoena issued before complying. The Department of Home Affairs (DHA) had in fact even then taken the technicality that SAHRC did not have powers to subpoena under this Act and was simply failing in their duty to comply.
Section 51, requiring all private bodies to submit manuals, resulted in massive overload on the SAHRC. More than three million manuals were received. This year SAHRC had been flooded with requests for access to the manuals by members of the public. It had neither the internal capacity nor processes to deal with these queries. It would have to seek another avenue of assistance, and in many cases this had come from the bodies themselves who had sent through the manuals.
Openness Awards had been introduced, where public bodies could receive golden key awards, and Deputy Information Officers a R10 000 reward. The two bodies that complied most were the Department of Defence and the SAPS’s Deputy Information Officer.
SAHRC were seeking law reform on the processes. It requested the Committee to assist in three matters. SAHRC had already approached the Department of Justice to amend regulation 187, so that Section 51 manuals should not be submitted to the Commission, and so that some private bodies could be exempted. It asked the Committee to urge DOJ and the Rules Board to pass the rules so that magistrate’s courts would be able to hear these matters. Thirdly, it was noted that in 2000 DOJ was requested to look into setting up the Information Commissioner within 12 months. Nothing at all had been done. The Committee was requested to assist with this.
Information and Communication Technology Developments
Mr Sello Hatang indicated that an IT audit had been done this year to find out what SAHRC could do with its systems. That audit would address compliance. A study had been done by PriceWaterhouseCoopers and SAHRC was awaiting that report. There was an attempt to integrate systems so that there was one entry point for records, using the Hummingbird System. All electronic records would be integrated. A member of the public would be able to choose what he wanted from the screen. All systems would be included on one screen.
Ms Johnson raised two very important issues that were raised also at the Ad Hoc Committee on Review of Chapter 9 Institutions. She asked where the problems lay with access to information and why and how an Information Commissioner would assist.
Mr Wessels indicated that the purpose of an information commissioner was to ensure that whenever a request under PAIA was turned down the relief must be swift, cost effective, and affordable. Experience over the last seven years had shown that this was not currently so, and this Committee had reported on the matter. DOJ had never come back with a report. Different models could be explored, and these were in the hands of the Asmal Committee. In 2000 already a parliamentary committee was alive to the lack of financial and other resources and sought a way to ensure that there was not a proliferation of commissions. Currently the only relief that was available was through the High Court. Once PAIA process had been started mediation was not possible. In most disputes around access to information the key arguments would turn on the meaning of the exceptions. The Supreme Court of Appeal recently had to decide on this very point. He thought that a dedicated information officer would have that expertise, but Deputy Information Officers were tending to take the safe route of non disclosure. An information commissioner would contribute to swifter, faster and more effective processes.
Mr Joubert asked SAHRC to expand on the comment about the subpoena powers raised by the DHA.
Mr Wessels noted that the SAHRC had powers in terms of its own Act, under which it could subpoena people to provide assistance reasonably required of them. However, Section 32 of the PAIA stood on the same footing, yet contained a contradiction. This point had been raised with the Asmal committee.
Ms Johnson asked about the problems with equality courts and how to fix them.
Dr Majodina stated that last year the Commission conducted telephonic interviews all over the country to monitor the equality courts. In four provinces SAHRC officials had gone to courts The results were not impressive. A number of problems could be put squarely at the feet of the DOJ and its systems. Most courts did not have equality court clerks who were duly appointed and most had a shortage of expertise. Even after appointments the Court administrative procedure was such that clerks were shifted around to do work in other courts. The training was inadequate in terms of length of training and upgrading. Magistrates had complained that their training too was inadequate. There was lack of awareness of the Courts by both court officials and the public, with insufficient signage and posters only appearing in English. There were problems of infrastructure. The Courts were supposed to be less formal, and operate in a round-table fashion, to be less adversarial. Most courts did not do so, and did not have computers, stationery and the basic requirements. Most provinces reported very few cases being heard, and if they were heard, there was a tendency to dismiss them or to refer them elsewhere. Labour courts were being used as referral points. The cases were taking too long to resolve. The combination of reasons led to the courts not meeting the vision for them. Attitudes were also affected, so there were serious problems where any issues to do with equality were being relegated to lowest priority in that court. A number of recommendations had been made. It was a great shame that the courts were not functioning and were not being treated as priority amongst those responsible for their administration, and the public was not being encouraged to use them.
Mr Landers was concerned about the Emphasis of Matter in the last audit report. The Auditor General's comments were not satisfying. He asked for comment on why the internal audit function was outsourced, although the internal audit committee continued to function and meet. He also noted that Deloitte Touche were engaged to update certain matters.
Mr Thipanyane responded that all matters of emphasis had been addressed. Mr Joubert asked for the policy on interest-free loans reported upon by the Auditor General.
Mr Sphilele Zulu, Human Resources Manager, SAHRC, noted that there was provision for a salary advance for staff members. SAHRC normally charged 8% for every advance, and had a system to ensure that the Commission received what was due. An Acknowledgement of Debt form was signed and deductions were made for three months, at the end of the month.
Ms Meruti noted that the Audit Report contained in the Annual Report noted that on review of selected payslips some employees were not taxed on the benefit on what were described as "interest free loans".
Mr Zulu said that this was not correct. 8% was set out
Mr Kollapen indicated that in 2005/06 this may have applied, but that this previous practice had been discontinued. Mr Zulu was describing the current practice.
Mr Meruti noted also that staff debts were not being adequately followed up.
Ms Sarah Muvhulana, Deputy Director, Finance, SAHRC, said that the staff loans had been recovered within a period of three months and no other loans were given unless they had been paid off
Mr G Magwanishe (ANC) was aware this had happened in 2005/06, but asked how much was lost as a result of non compliance then and how was this recovered.
Ms Muvhulana said that SAHRC had lost nothing and everything had been recovered from staff members. .
Mr Thipanyane responded to Mr Landers by highlighting the .distinction between the internal audit committee and the internal audit function. He noted that no staff members were employed to audit how the policies were implemented and complied with the law. The outsourced internal auditors would report to the audit Committee, which consisted of outsiders. The Auditor General would then be the external auditor.
Mr Landers noted that reference had been made to the rules of procedure of the Rules Board. There was an indication that the Minister should intervene. The judiciary felt that this was its terrain, and that the Ministry, DOJ and Parliament should not intervene. He wondered if the Chief Justice should be asked for his intervention.
Mr Solomons said that during the budget hearings with the Legal Aid Board the question of civil cases was raised. It was clear that more people were requesting civil legal aid as a right. He asked how far the SAHRC could take a civil case, and if it was able to make any contribution to these matters.
Mr Kollapen indicated that SAHRC did not see itself as having a litigation function. Every possible case for civil assistance could be located somewhere within a civil framework. SAHRC would not have the capacity to respond to all cases. It tried to take a narrow approach and deal only with those cases clearly falling within the human rights mandate. Some amicus cases had been taken and some others to the high court, including an urgent matter to obtain the suspension of an educator accused of rape who had not been suspended and was in daily contact with his victim. The litigation function was mainly used in the context of equality courts.
Mr Magwanishe referred to the Annual report, and the structuring of the measurable objectives. He queried whether the statements that SAHRC would "make the necessary interventions, where appropriate" were capable of measurement.
Mr A Price, Deputy Director, Administration, SAHRC stated that the measurable objectives formed part of the strategic regime, that had set out clear targets and indicators that would allow the statements to be translated into a measurable items. He indicated how this had been broken down in the slides. The strategic objectives were broadly stated and would then be broken down into programme objectives to make interventions The tabulated programmes gave specific measures and indicators that would show how the strategic and programme objectives could be reached and measured. Mr Magwanishe noted that the Auditor General had reported that SAHRC had not followed the principles of procurement policies on audit tender. management. He stressed that the SAHRC must be seen at all times to be acting fairly. He asked for comment on this non compliance with the Policy Framework Act.
The Chairperson asked for a full written report on each issues indicating what the problems were at the time and what steps had been taken to address them.
Mr Kollapen indicated that such a report was already almost available
Ms Chohan Khota took over the Chair again.
The Chairperson said that a comprehensive equality review had been completed and many of the issues raised on the administrative situation at the courts had been raised with the Department of Justice. All courts should have been properly equipped by now and it was agreed that training and initiation campaigns would follow.
Mr Kollapen said there was not a shared understanding as to where institutions fitted in and there was a need to explore this further. Civil society regarded the Chapter 9 institutions as watchdogs, and many in government would judge the institutions by the extent to which they dealt with it. Notwithstanding whatever might emerge from Asmal Committee process, the mandate of this institution should be guarded.
The Chairperson commented that the presentations had been enlightening and congratulated the Committee on the work being done. The Committee pledged its support to the Commission.
The meeting was adjourned.