South African Human Rights Commission on its 2018/19 Annual Report

Meeting report

Adv H Mohamed (ANC) noted that the Chairperson was absent as he was conducting interviews. In that morning’s meeting, he had been elected Acting Chairperson for the day’s proceedings. He welcomed a number of commissioners from the South African Human Rights Commission (SAHRC). The mandate of the Commission and the Committee was to protect and ensure human rights.

South African Human Rights Commission (SAHRC) 2018/19 Annual Report
Prof Bongani Christopher Majola, SAHRC Chairperson, introduced the SAHRC delegation. He informed the Committee that he had no remarks to make for the day. He wanted the Chief Executive Officer to present.

Mr Tselisio Thipanyane, SAHRC CEO, said that as of 2019, SAHRC been the recipient of six consecutive unqualified audit opinions. It has finalised 8,491 of the 10 488 complaints filed. Under its protection of human rights mandate, SAHRC had entered into successful litigation that had strategic impact and 72 cases were instituted in Equality Courts. It completed 3 investigative hearings reports: the status of mental healthcare in South Africa; the lack of safety and security measures in schools for children with disabilities; and land.

The Commission is working hard to ensure that it is visible. Its media profile is quite high. Under its promotion of human rights mandate, it presented statistics on media reach and the sentiment of people towards the SAHRC. It had reached over 90 000 people in rural and peri-urban areas across provinces. It had an increased reach and visibility through the media – with over 3.5 billion people reached.

Under its monitoring mandate, it had completed its research report on the State of Human Rights in South Africa as well as research briefs on:
1. Land, Gender and Socio-Economic Rights.
2. Equitable access to land.
3. Structural violence and exclusion: Interrogating the issue of urban land occupation in South Africa.
4. Sustainable Development Goals and the role of National Human Rights Institutions.
It has ongoing monitoring of the implementation of the Commission’s report recommendations and directives.

It had achieved 22 out of 30 targets (73%) for its performance indicators. There were several areas of non-achievement. It provided reasons for this and corrective action. A key reason was a number of posts had to be frozen because of the financial constraints the Commission had faced.

On financial performance, internal controls and risk management processes have been strengthened. Personal costs were allocated R119.9m which accounted for 72.4% of actual expenditure. Personnel costs account for 67.7% or R130.7mil of budget. Quarter 1 performance for 2019 is ‘relatively fine’.

Based on the audit findings on supply chain management, HR, ICT and financial statements, its policies and procedures have been corrected.

There is increasing public interest in the work of the Human Rights Commission. All SAHRC obligations are met in accordance with the Constitution, the SAHRC Act, and Paris Principles.

Discussion
The Acting Chairperson thanked Mr Thipanyane and congratulated them on the unqualified audit. He asked if, when it was noted that the SAHRC has an outreach of 3.5 billion, they actually meant 3.5 million.

Mr Thipanyane replied that 3.5 billion was meant. The SAHRC has a company it pays to track their media coverage.

The Acting Chairperson observed that this statistic represents viewing, as one family could be reached ten times and count as ten views. Could you share the MOU? We would like to track that progress, in terms of the legislation. He noted that there had been procurement of R500 000 by the SAHRC. Is that progress?

Mr W Horn (DA) commented on the procurement totaling R2.2million in irregular expenditure. The SAHRC made the statement that, for the second year in a row, there was not a proper understanding of the law. Does the HRC now understand supply chain management? What consequences have followed from this new understanding?

In February the SAHRC had hearings on xenophobic violence. We know what this country has seen in recent months so when can we expect the report? The Department of Justice has been slow in delivering a national action plan that develops a response to this violence. In the Fifth Parliament much was made of the Forum of Institutions Supporting Democracy. Does this institution still exist and function? Has any progress been made in addressing cross-referrals between Chapter 9 institutions? At the last meeting with the SAHRC, the conversation turned on the SAHRC finding that they would not take Julius Malema to court for hate speech. We had a discussion with the SAHRC then to ask how they justified washing their hands of the statement Malema made, especially if they talk about protecting the human rights of everyone. In addition to that, your credibility depends on whether the public at large have confidence in you. Why should white people not conclude that the SAHRC is biased against white people in light of this inaction? It was promised that registered complaints would be given monthly updates describing the SAHRC findings. Little has been done over remarks made by Zindzi Mandela in Denmark. Eben Etzebeth, a rugby player for the SA national team, now stands accused of racism. In this case, the SAHRC is much more eager to inform the public what is going on. Does this not erode confidence?

Mr X Nqola (ANC) asked if the SAHRC has problems in soliciting human rights reports from organs of state. If so, which organs? A major challenge in this country is inequality. What programmes are in place to ensure that this is addressed, in particular on class and race? The SAHRC pursues litigation for the transgression of human rights. How is this conducted? On xenophobia, given recent occurrences, can we get a sense of SAHRC’s role in this calamity and the advice it can give? He informed the Committee that he himself only found out about the SAHRC when he had left university. He suspected that many disadvantaged people might not be aware of the existence of the SAHRC. How does the SAHRC raise awareness? What kind of population do they target? On hate speech, given that we are in a world where people using social media might make hate speech, what measures does SAHRC have to monitor this? You are filling critical posts this year. What do you mean by critical posts?

The Acting Chairperson noted that the Committee had not yet heard from the SAHRC if the 2018 xenophobia report was concluded.

Ms N Maseko-Jele (ANC) wanted to make the point that the SAHRC address the Auditor General recommendations and ensure that its internal control measures are improved. Can we get a progress report on the handover? There have been challenges with the Equality Courts. Could the Commission tell us its plans in ensuring that those courts are made functional? The SAHRC noted it has employed five consultants for two months. Can the Committee be told about the work done by these consultants?

Dr C Mulder (FF+) noted that chapter two of the Constitution deals with human rights. The SAHRC is one of the cornerstones of our Constitution. The Commission is independent and must be impartial. His party had had a number of negative interactions with the SAHRC over the years. The outcomes were very discouraging. The Committee has been told that 3.5 billion people have been reached about the SAHRC. This seems confused. You have noted that only a third of respondents have a positive reaction when asked about your work. The rest are neutral or negative. He suspected the percentage of negative respondents will increase as awareness grows. On the Eben Etzebeth matter, he asked if the head of your legal department, Mr Buang Jones, has taken accountability for his utterances. Dr Mulder referenced other individuals who were subject to hate speech, and after the complaint was made to the Commission, no response was ever given. Mr Jones goes to the media and says all kinds of things. Like it or not, he is your spokesperson. Have you succeeded in promoting human rights? If you look at the state of the country, are you happy? He did not want to see the SAHRC fail or be seen not to credible but there are flagrant double standards.

Mr Nqola remarked that the FF+ were the last people to lecture the Committee about human rights.

Mr T Mulaudzi (EFF) asked why SAHRC procured goods that exceeded R500 000 without following tender processes. On its irregular expenditure, where was Treasury's approval? Where there any consequences for management as a result of the audit findings? When are you going to minimise the research unit vacancy rate? How many people with disabilities are employed by the SAHRC? For 2018/19, were performance bonuses awarded to the commissioners or employees? How far are we with the centralisation of commissioners we agreed to in the Fifth Parliament?

Prof Majola replied that Mr Nqola’s issue with xenophobia touches on the SAHRC’s role. On enforcing the SAHRC recommendations, there is non-responsiveness in the executive. Parliament has oversight of the executive, so it would help us if Parliament itself helped ensure it. On Xenophobia, a report was produced in 2008 after similar incidents. Certain recommendations were made then but that report was very largely not implemented on the side of government. There is a limit to what the SAHRC can do to make changes - it is a problem that requires the combined efforts of many different people to address. Unemployment contributes quite largely to xenophobia; we to need to help more people to be employed. We have the obligation to make recommendations to the government whenever we feel that we can better protect human rights. We need to work together.

It is true that people do not know about the SAHRC. Rural communities are spread across vast distances and we have a very limited budget to spread awareness in this way. We piggyback on the Public Protector outreaches. Sometimes we can use community radio stations to raise awareness, but these stations still require funding. We have financial limitations.

The Equality Courts are in the hands of the Department of Justice. We participate in the promotion of these courts through the Equality Review Committee. However, the Committee has never met because it does not really exist. It has been a standing issue, but it has not yet happened. We requested a meeting with the Minister of Justice in June, but we are still waiting on confirmation for that.

On the centralisation of commissioners, he recalled that the Committee’s previous chairperson even issued a statement on the matter. In the absence of guidance, we decided that commissioners would be located in Johannesburg.

Ms Priscilla Jana, SAHRC Deputy Chairperson, commented that she did not know how one can equate the two cases, because the two have different historical circumstances. We have made steps but we cannot erase that history. Ms Zindzi Mandela has talked about her own experiences and what she said in Denmark was a projection of her own experience.

Mr Andre Gaum, SAHRC Commissioner for basic education, addressing Mr Horn and Dr Mulder, noted that the SAHRC had a discussion in their last meeting with the Committee on the Julius Malema remark, where they explained that there were a number of complaints throughout the country. We appointed a senior counsel to look into the matter. It was concluded that it was not hate speech.

Mr Gaum noted that he had a discussion with one of Mr Horn’s colleagues in the DA, who agreed that it was not hate speech. There is a new complaint against Julius Malema that we are looking at taking to the Equality Court. For the record, we do not wash our hands of issues surrounding white people. That is not correct. Independent decisions are made that we have to live with. On the ambassador to Denmark, Ms Zindzi Mandela, he requested that the SAHRC looked into the matter. If there is no progress he would invite all Members to request it be followed up.

Mr Gaum said that there is a factual dispute around the Eben Etzebeth case. We will take action in accordance with the facts. Regarding Mr Jones' alleged remarks, the Commission took the decision yesterday that there should be an urgent review to see if Mr Jones can continue in this investigation, given those remarks made. It is important the SAHRC live up to its imperatives. There was, in his view, a concerted effort amongst the commissioners to do that. If Members think there is bias, please call a commissioner and the SAHRC can follow up on it.

Ms Matlhodi Angelina Makwetla, SAHRC commissioner for children’s rights, spoke on the xenophobia report. A previous report had been compiled after similar xenophobic outbreaks in 2008. It was sent to leaders of the investigation then, but there was a lack of responsiveness. A new report will not yield any new important results as the previous report has not been implemented.

Mr Jonas Ben Sibanyoni, SAHRC commissioner, noted a legal subcommittee has been established to address certain arising issues.

Mr Thipanyane commented on Mr Jones’ alleged remarks, he has been given advice not to engage with the media. We took Zuma to court, we won. We took the BLF to court, we won. In investigating black people we have been accused of being agents for white people. Members should look at this Commission’s record. We should be assessed properly. Where we are wrong, take us to court. The Committee should be aware of this.

On the IT strategy, a new system will be released this year. We have improved our hardware and software. On procurement, there was a misunderstanding on strategic matters. A mistake was made. The CFO was suspended in December last year; we had to part ways with him.

On overlapping functions amongst Chapter Nine institutions, the democracy forum is still functioning. On the challenges of getting reports from public bodies, we have raised concerns about certain bodies not complying with our requests. It is actually getting worse for local governments. We do not know why but we will engage to try to find out why. We have challenges of equality, poverty, unemployment and violence. We also subscribe to affirmative action. We can provide a list of all the lawyers we have briefed as a commission to undertake issues of transformation to this end.

3.5 billion is not the number of people we have directly reached, but it is an indicator of how far we are going. In Grade 10 and 11, the human rights moot court competition is compulsory and we reach learners that way. We cannot reach everywhere, but we have a much better coverage than before. We do take a lot of our complaints via Twitter.

On frozen posts, last year Treasury notified the Committee that we would have to reduce our human resource allocation. We have had to freeze a number of posts, but it does mean that we are forced to find out how we can each better do our job. We have frozen posts to avoid retrenchment. There have been some knocks. On consultants, for this year, we employed two young researchers to help monitor detention centres. We have to monitor 1000+ police stations. We have to prepare a report for the UN next year on this issue. There are enquiries in the Eastern Cape and the moot court competition that have required hiring two additional young members of staff. He believed that, generally, the Commission is receiving far more positive coverage than it has in previous years.

On double standards, again, judge the SAHRC on what we do, not on perceptions. We are actually investigating the case of Ms Zindzi Mandela. On vacancies, we parted with the CFO, we advertised posts but we did not get anybody suitable. We have to consider if we will use a recruitment agency but that could be quite expensive. We have two people in the SAHRC with disabilities. We asked the European Union to give us 65,000 Euros to help conduct a study tour. Bonuses are not paid to commissioners, but there are inconsistencies with the pay of SAHRC commissioners and commissioners in other organisations.

Ms Jana told Members that she was once a Member of Parliament and emphasised to them that MPs have the power to effect meaningful changes. She asked Members to think about what their responses to these challenge would be.

The Acting Chairperson asked if the commissioners had any more comments.

Mr Bokankatla Joseph Malatji, SAHRC commissioner, noted that the SAHRC is doing what it can to engage with public sector to ensure that there are fair hiring practices for hiring those with disabilities. The private sector needs to comply too. Funding permitting, we will have to meet with the biggest companies to emphasise that they need to comply with the Act too.

Mr Andrew Nissen, SAHRC commissioner, added that lots of municipalities are not responding. Eben is innocent until proven guilty but we need to look at certain remarks in context. The broader public must take the SAHRC to task.

Dr Mulder noted that commissioners had not responded to his remarks. He commented that they should draw up a list that has the facts available.

Ms Maseko-Jele heard that most SAHRC cases are cases that deal with black people. There is a lot of noise around white people though. The SAHRC should deal with all cases equally.

Mr Nqola added the SAHRC acknowledges its weakness, especially on resource limitations - we must acknowledge the work they are doing. We should not cast doubts where there are no doubts to be cast.

The Acting Chairperson commented that he thought it nice to meet the whole commission. There are a number of other matters still open for investigation, but members would appreciate updates on these when possible. On the financial issues, he asked that they put something in writing to that effect so the Committee can get a sense of what is important.

The meeting was adjourned.