South African Human Rights Commission: briefing

Meeting report

South Africa Human Rights Commission (SAHRC or the Commission): Briefing
The Acting Chairperson noted that the purpose of this meeting was that the Committee should be briefed on the current and planned activities of the South African Human Rights Commission (SAHRC), and the implications of these for Parliament.

Mr Jody Kollapen, Chairperson, SAHRC, noted that documents on the Strategic Plan and were made available to the Committee, but he would rather focus in his presentation on the work of the Commission, which had to do with ensuring equality, non discrimination and eradication of poverty. SAHRC, in filling its role as watchdog, should be fearless and independent, but not so much so that it operated in isolation, since the Commission’s effectiveness came from the various levels of support, some of which still needed improvement, that it had from Government, Cabinet and Parliament. SAHRC had been working with the European Union (EU), and although there was a dispute ongoing, it was mainly centered on the highly technical and selective interpretation of the agreement. There were some outstanding important matters, namely the need to appoint an information officer, the non ratification of the International Covenant  on the Economic Social and Cultural rights and the amendments to the Human Rights Commission Act (the Act).

Dr Zonke Majodina, Deputy Chairperson, SAHRC, amplified on the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act). In particular she highlighted the fact that the long-overdue promotional regulations portion of this Act had still not been enacted, despite the fact that other amendments had been made as far back as 2003.The unintended consequence of this was that it rendered the Equality Act ineffective, since a number of Equality Courts had to be closed down due to lack of public awareness.

Dr Leon Wessels, Commissioner, SAHRC, reiterated the need for an information officer. He said that this position could become an effective tool in delivery, because some of the people’s dissatisfaction was due to lack of knowledge. He said that he was happy to note, when going through the Parliamentary Monitoring Group reports as far back as 2000, that the  issue of access to information had been highlighted, and Mr J Jeffrey (ANC) had requested an ad hoc report on the Chapter 9 institutions. This report, to date, had not been produced. Dr Wessels also highlighted the problem of the non cooperative stance of public bodies, and stated that around 300 public bodies had still not complied with the Access to Information Act.

Mr Tom Manthata, Commissioner, SAHRC, said that elderly people were a vulnerable grouping that seemed to be invisible unless it was time for these people to collect their pensions. He suggested a forum for the older generation.

Prof Karthy Govender raised the issue of the need to revisit the Human Rights Commission Act, in particular the highlighting the uncertainty that plagued the Act because it was never amended to be in line with the final Constitution. In order that the SAHRC could operate, it had had to manoevre around and even ignore some provisions of the Act as it was currently written. The SAHRC had made several appeals to cure this, and this was draft legislation in place. He pleaded again that the amendments be dealt with speedily.

Prof Govender also noted that the Commission had five instead of eleven commissioners at present.

Ms Pregs Govender, Commissioner, SAHRC focused on human dignity as one of the founding values of the Constitution and noted that poverty impinged on this value. She then also drew attention to social and economic rights and the need to achieve realisation of these rights. 

Discussion
The Chairperson asked the Commission to explain why South Africa had yet to ratify the International Covenant  in relation to social, economic and cultural rights.

Mr Kollapen responded that the SAHRC was given to understand that Cabinet had taken the decision to ratify the Covenant , but the process included making available that Covenant  to all the departments that might be affected by or have an interest in it. He believed that this process had somehow been halted at the Department of Labour, because the Covenant  incorporated the right to work, whilst South African domestic legislation did not enshrine this right. Ratification of the Covenant  would certainly have implications for South Africa, but he was of the opinion that these were not insurmountable. He added that earlier in the morning SAHRC had received word that the Department of Foreign Affairs (as previously named, now the Department of International Relations and Cooperation) wished to discuss this issue with the SAHRC. However, despite this request, SAHRC still wanted the Committee to engage with the discussion.

The Acting Chairperson asked if the Commission had moved from making observations to actually having solutions on how to have the elderly affirmed in society. He noted that everyone should be concerned about the plight of the aged because they would soon join that category.

Mr Kollapen agreed that there was need to look at this vulnerable group, and move beyond the mindset that saw old people as a liability instead of an asset. He noted that South Africa was struggling in many areas such as education and health, but it was not paying enough heed to the older citizens who had a wealth of information and were valuable resources. He was of the opinion that whilst it was well and good to provide a safety net for the elderly, South Africa should also be looking to how it could utilise former teachers and find other ways in which the elderly could make a contribution.

Prof G Ndabandaba (ANC) commented that he was aware of the plight of the old people. He lived in a township, where he saw first hand the disrespect and abuse that old people suffered, often at the hands of their own children, who, in many cases, remained unemployed and would abuse and beat up the parents in order to get them to hand over their pensions, which the children would then squander on alcohol.

Mr Manthata commented that there was brutal segregation against old persons, to such an extent that most people avoided learning about the aged. He said there was need for a forum, because if the elderly were left to be dealt with by their families, they, as a group, could easily be set aside and forgotten. He believed that this kind of discrimination should be dealt with at a local level. The elderly should be able to bring their cases to Equality Courts.

Prof Govender added that even though the regulations had not been enacted this did not mean that the Equality Courts did not still have significant power to redress varying degrees of discrimination. 

Ms D Smuts (DA) remarked that there were some issues that were urgent and should be dealt with promptly. The most important, she suggested, were the vacancies on the Commission and the amendments to the Human Rights Commission Act. She asked why five vacancies were being advertised when it was clear that there should be eleven commissioners. She believed that the time was right that the Committee itself should deal with the selection of the commissioners, and not relegate the duty to an ad hoc committee. 
She also believed that the drive to pass the amending legislation must come from this Committee.

Mr Kollapen agreed that the issue of vacancies was very important. The SAHRC had received a letter from a client in the Western Cape, who pointed out that the Commission was illegally constituted since it had five instead of eleven commissioners. This meant that people using the services of the Commission were aware of the issues, which made this a real rather than an academic challenge.

Mr S Swart (ACDP) remarked it was an honour to work with the Commission. The new Parliament was placing even more emphasis on increased oversight. He commented that it was a pity that the Commission was losing experienced commissioners. He agreed with the Commission that there was still room for improved engagement and support. He then asked if the lack of compliance with the SAHRC was still an on-going problem.

Mr Kollapen replied that the problem of lack of co-operation and non-responsiveness was still ongoing. Because of slow responses, the Commission had to postpone its hearings on the Millennium Development Goals. This had resulted in Dr Wessels having to sit in 35 separate subpoena hearings. He pointed that the Commission had no wish to issue subpoenas, as it did not believe that this was the best way to enforce its directives. He mentioned that this was not the trend across the board, and this was reflected by the fact that he earlier this year he had written to a Minister calling for a response by 2 April. The Minister immediately responded that this was too short notice, and requested that he be given until 10 April to comply. This, in the view of the SAHRC, was a most pleasing response. However, often the SAHRC’s requests would simply be greeted with silence, and the problem was that the SAHRC was unaware whether silence signified lack of capacity, or lack of intention to deliver. This was a serious issue because the SAHRC was not a court of law, and thus it was only able to make recommendations. This system should require that responses to recommendations be delivered within a set period. Even if the bodies concerned did not like the recommendations, they should be legally obliged to give a response. This would at least enable the SAHRC to pinpoint that, for example, out of six recommendations, two were accepted, two were not and two were considered totally unreasonable. He felt that a legal obligation to respond should be included in the legislation.

Prof Govender expressed his opinion that when the Constitution spoke to organs of State having a responsibility to ensure the effectiveness of bodies like the SAHRC, this should be considered as a direct responsibility. It could be argued that an organ of State would either accept a recommendation or seek to have it overturned by approaching the Court. Because he could not assign any other meaning to this section, he agreed that it would be useful if this duty was encapsulated in the enabling legislation. He said that he was aware that SAHRC did not have the same powers as a court, as this would transgress the separation of powers, but it did have tremendous responsibility, and it could not be said that the findings of the Commission lacked consequences, because this would go against the Constitution.

Ms Smuts disagreed on the direct relationship between equality plans and the equality courts. She stated that she did not think that the lack of equality plans had any direct relationship to the fact that the Equality Courts were less well known, nor was it a real reason why these Courts were not being used. The Equality Courts were supposed to give effect to the Constitution’s Section 9 horizontal rights, and the drafters of the legislation felt that they were re-writing history. The Courts needed time to become used and effective. The Courts were indisputably important, as they provided an essential way to quick and cost-effective justice. She believed that there were better ways to publicise these Courts outside of equality plans.

Dr Majodina replied that she noted Ms Smuts’ concerns, but still maintained that there was a link between the production of the equality plans and the effectiveness of the Equality Courts. She agreed with her that when the Equality Act was first drafted it was intended to prohibit unfair discrimination, and that the aspect of promoting equality came later. However she was of the opinion that there was a dynamic relationship between prohibiting unfair discrimination and promoting equality, because, by the very act of the Courts sitting, hearing cases, and making orders, this promoted equality. When a defendant was requested to make some form of redress this in itself was educational, because people would become aware of the fact that a particular action of unfair discrimination was no longer lawful in South Africa. Apart from this, she noted that her experiences when promoting the Equality Act had shown her that only when the public servants and the public in general became aware of the Equality Act did they also realise that the Equality Courts were part and parcel of the Act. The problem was that many people remained unaware of the existence of the Equality Act, and even less aware of the Equality Courts. During one workshop she had been shocked to discover that even public servants were unaware that they could seek recourse through the Equality Courts. She acknowledged that of course there were other ways also to promote the Courts, such as  improving awareness in institutions such as the Justice College. Nevertheless, this was not enough, and more needed to be done. She added that the tendency by some defendants merely to pay the fines, but not do anything further, also defeated the purpose of the Act.

Ms Smuts asked why the Commission regarded 400 cases as a dismal figure.

Dr Majodina replied that having only 400 cases decided, in a country that had a legacy of institutionalised and structural discrimination, was considered far too little. When the Equality  Courts were set up in 2003 they had expected an avalanche of cases, resulting from the widely-practised discrimination of the past. For instance, in Mpumalanga, there was not one case brought to the Equality Court until three years ago, despite the fact that anecdotal and other evidence from this Province indicated that there was widespread discrimination. A number of the Equality Courts were actually closed because of their lack of activity, and this was indeed worrying.

The Acting Chairperson asked if the presenters could expand more on the administration of the Commission. The Committee was interested in how it worked, especially because there were complaints to the Deputy Speaker, and he asked if the SAHRC was aware of these.

Mr Kollapen replied that the workings of the SAHRC would be addressed in the presentation by the Chief Executive Officer. However, in brief, he noted that the President, on the recommendation of Parliament, appointed the Commissioners. The Commissioners then  appointed the CEO, who in turn appointed the staff. The CEO then appraised and reported to the Commission regularly on the staff, in terms of their performance agreements, so the CEO was akin to a manager.

Mr Kollapen acknowledged that he had received a copy of the complaints on the previous Friday from the Speaker, who had requested an investigation. The Commissioners would meet later in the day to give effect to this request. There were some serious concerns raised in the complaints, and he assured the Committee that SAHRC was going to deal with it seriously, since the source of the Commission was its staff.

Mr Wessels added that the idea of having an information officer that he was advocating was not out of step with the other suggestions. He informed the Committee that it had given the costing of such an idea to the Ad Hoc Committee that had, during 2007, considered the position of the Chapter 9 institutions. What it entailed was that when the SAHRC had a full complement of Commissioners, one of them would be designated to work exclusively with access to information. In order for that Commissioner to work effectively, there would be a need to amend the Access to information Act, and this was the heart of the matter. He informed the Committee that before he was due to leave, he had been assigned to hear over 30 subpoena matters, all of which concerned failure to respond to the correspondence of the SAHRC. He said that it was amazing how a subpoena would focus the mind, as once a Government official received a subpoena he or she was immediately willing to talk and settle. However, especially over the last 18 months, there had been an alarming tendency amongst Government officials to think that subpoenas could simply be ignored. When this happened, the SAHRC was obliged to lay a formal charge indicating the official’s reluctance to comply and honour obligations under the Human Rights legislation, and it was this tendency, and the queue of cases, that normally generated problems for the Government. 

Presentation by the Chief Executive Officer (CEO)
Adv Tseliso Thipanyane, Chief Executive Officer, SAHRC, noted that copies of the budget and Strategic Plan had been made available to the Committee Members. He would therefore only highlight a few of the issues in his powerpoint presentation. He tabled and explained the vision and mission of the SAHRC. Its strategic outcomes reflected how the Commission envisaged carrying out its Constitutional mandate. He presented the current organogram of the Commission, and the strategic challenges. He informed the Committee that he was not going to speak on all the challenges. However, he did wish to draw attention to the budget constraints, and the additional challenges posed by the fact that there were only five commissioners instead of eleven. Some of the staff of the SAHRC had approached the Commission for Conciliation, Mediation and Arbitration due to delays in payment. Despite this, the SAHRC could still not afford to pay all the staff and there was tension between those staff who had been paid and the rest who were still waiting for their pay. He also pointed that there were challenges relating to corporate governance, information and IT.  Internally, the SAHRC faced challenges in lack of strategic partnerships, meaning that they were working with very limited resources. There was also a problem with high staff turnover, due to the fact that SAHRC could not offer competitive remuneration. However, the biggest embarrassment was that after 14 years the SAHRC was still trying to work with two pieces of legislation that were not fully operational and which could not be used properly.

Discussion
Mr J Sibanyoni (ANC) remarked that he was a firm believer in the power of the voice and the radio, and was impressed by the fact that the Commission, in its public awareness campaign, had used community radios. He asked why this public awareness campaigns had not also canvassed the issue of Equality Courts, pointing out that this would have been one way to publicise and popularise these courts.

Dr Majodina replied that she was fully in agreement with Mr Sibanyoni. Early in the Commissioners’ terms, they had tried to implement this system by partnering with the national community-based Paralegal Association. This Association, in the course of its interaction with the people on the ground, would then use community radio stations, as well as paper information, to advance human rights on behalf of the SAHRC. However, the initiative had not, in the long run, been successful, for various reasons, including lack of funding, and had collapsed. However, the SAHRC did have an education and training programme that did outreach work. Part of its targets had envisaged training officers in provinces doing a couple of radio sessions, but this had not proved easy to set up, nor particularly successful.

Mr Sibanyoni asked if the Commission did not also think that the issue of the school in the Eastern Cape was a case that should be taken to the Constitutional Court. He remarked that he was aware that the Commission also had other intervention methods, but he thought that this issue was a strong one to bring before the Court.

Mr Kollapen replied that the issue he raised was an interesting one. He agreed that it certainly seemed to be a case well worth pursuing, although the starting point would be the High Court. However, this could also prompt a call to the Minister of Education, who must be aware of the situation, to intervene. This would allow for effective combination of cooperative techniques and legal action, because it would give Government time to intervene. He emphasised that there was need to strike a balance between rushing off to institute Court actions, or allowing Government the chance to fulfill its obligations to its people. However, he agreed that the situation here did need urgent intervention.

The Acting Chairperson asked whether the tents being used at the particular school were brought in and removed at different time periods, and what exactly was the situation.

Mr Kollapen read the letter that was received on 23 June. In essence, this letter highlighted that during August 2005 the school was hit by a tornado, which left two classrooms standing. Another tornado hit the school in January 2006, damaging the one classroom and leaving only one. That remaining classroom was then hit by lightning on 2 October, which resulted in the infrastructure of the school being completely destroyed. In 2005 the disaster unit had brought in temporary tents that the school could use while waiting on the Government to rebuild the classrooms, but since then no classrooms have been erected. The disaster unit had since taken its tents away, as a result of which the children were trying to study in the open, without any shelter.

The Acting Chairperson thanked the Commission for this explanation and quipped that it seemed that a sangoma was needed, for it appeared that witchcraft forces had targeted the school.

Adv S Holomisa (ANC) noted that lack of co-operation had been a characteristic of Government. However, he asked why there appeared to be lack of co-operation among the Chapter 9 bodies, who worked within the same environment. 

Mr Kollapen replied that partnerships of Chapter 9 institutions had been difficult. Although in principle they had wanted to work together, in practice this had proved difficult to do.

 Adv Holomisa asked if having to use 4x4 vehicles to reach outback communities in fact amounted to a form of discrimination, as there were no tarred roads.

Mr Kollapen replied that SAHRC had not really been happy about using 4x4 vehicles, but it was the reality that they were needed to reach the communities.

Adv Holomisa thanked the Commission for its clear explanations. He was looking forward to receiving the full Report in September. He, however, said that he had not received a clear indication of the reasons for some of the challenges – for instance why there were only five commissioners, and why the President had not initially appointed all eleven. He also asked to what extent the work of the Commission was being hampered by the fact that it had only five commissioners. He also asked which department was responsible for the regulations, and whether the Commission had been given any reasons why these had yet to be enacted.

The Acting Chairperson noted Adv Holomisa’s apology for only being able to attend the meeting now, due to another engagement, and noted that most issues had been addressed in the presentation.

The Acting Chairperson asked if the SAHRC could clarify what it had termed its milestones, since he did not quite see that monthly performance reporting meetings and quarterly plenary oversight were in the nature of “milestones”. He fully understood the milestone of 100% alignment, because this was measurable but he was not so sure about the first two. He said that, due to lack of time, he did not expect a full answer now but he was looking forward to engaging with SAHRC further on this issue.

Adv Thipanyane replied that in terms of the Act the commissioners had to ensure that the mandate of the Commission was carried out, and in pursuance of this they appointed the CEO, who then appointed staff members. The CEO was responsible for the implementation of the strategic plans of the Commission, and also for ensuring that these were fully implemented. Because he could not do all the work by himself, other staff were appointed to deal with various aspects of the strategic plan, including conducting workshops or research. The CEO, however, had to ensure that everyone was performing his or her duties efficiently and effectively. In addition the CEO must ensure that the funds of the Commission were being used effectively. The Committee therefore had to look at the totality of the Strategic Plan, not this page only. The Commissioners would have to ensure that the CEO was performing his own oversight over other staff effectively, and his performance assessment would include a consideration of how the Strategic Plan was being implemented.

Mr Kollapen agreed that SAHRC would need to engage further on this aspect. In brief, however, if a measurable objective for the legal department was that there should be a turnaround time of 90 days in respect of complaints, then this was something quantifiable. If this was included in the Strategic plan, the Commissioners, during their plenary and bi-weekly meetings with the CEO, should be able to interrogate those outcomes. When there was a reference to the CEO providing strategic oversight, then this meant oversight in a process that was detailed. There was an underlying thread throughout the Commissioners’ and CEO’s programmes, and the connection must be established. Perhaps this connection was implicit at this stage, and should be spelt out. There was definitely room for more engagement on these issues.

Adv Thipanyane added that the Commission had clear outputs. These included producing a socio-economic output report every three years, conducting workshops every year, and dealing with complaints. The CEO had to make sure that these clear outputs and targets were met. For this reason he would have to inform the commissioners that a certain number of meetings had to be held, and then funding would be allocated.

The Acting Chairperson clarified that he had raised the point that it was debatable whether the holding of monthly report meetings could properly be referred to as a milestone.

Adv Thipanyane replied that according to the Public Finance Management Act, (PFMA) the CEO had to produce quarterly reports to the commissioners on how the Strategic Plan was being implemented. The CEO met with the Commissioners once a month to show the progress on that Strategic Plan. However, if the Committee felt that this should be done away with, then it was possible to do so.

 The Acting Chairperson commented that he was debating the terminology used, rather than the content of the Strategic Plan, and this was what was obscuring the issue. He noted that the monthly meetings were obviously important, and should not be removed. However, it was the fact that these were referred to as “milestones” that was problematic. Perhaps, to move forward on the issue, then everyone needed to discuss the terminology so that they fully understood the meaning.

In this regard, he commented that most people would not regard monthly meetings as a “milestone” in the sense that this was not  what the public was interested in. They would rather be interested in what had been discussed or achieved in real terms in those meetings.

The meeting was adjourned.