CGE Reports on Elections and Gender Mainstreaming; Country Compliance with CEDAW & Government GBV Response Plan; SAHRC Report on security in schools for children with disabilities

Meeting report

The Chairperson noted that there was a revised agenda that had been distributed to Members. The Committee Secretary then went through the first term programme for the Committee’s consideration and adoption.

Ms N Ntlangwini (EFF) said it was not useful to visit the Department’s offices, rather it would be better to schedule visits to women's safe houses and police stations to check, for example, if rape kits were available.

The Chairperson said it was important to visit the offices of the Department and the Commission for Gender Equality (CGE) and the National Youth Development Agency (NYDA). She said that on a previous oversight visit to the NYDA, they had heard that some offices were not functional and the offices were not in a state to be used by the public and the Committee had taken a resolution that it would visit these offices. The CGE internal audit and risk committee had found that some goods (for example televisions) were purchased that were not being used and that NYDA offices were locked in instances.

On the visiting of police stations, she said she thought she should wait for the CGE report on police stations. What was then needed was to add visits to shelters. This could be added to the oversight visits.

The Chairperson said that what was left was the need to identify which provinces to be visited.

Ms F Masiko (ANC) said the item on the Southern African Development Community (SADC) gender development of the previous year should not be forgotten and be squeezed into this term’s programme.

The Chairperson said the item would be made a priority for a Committee meeting in March.

Mr L Mphithi (DA) said he was excited to go on an oversight visit, but his concern was that the visit was to Gauteng instead of to rural areas. He proposed that the Committee start with the Eastern Cape. He supported the call to visit police stations.

Mr S Ngcobo (DA) supported Mr Mphithi’s proposal.

Ms T Masondo (ANC) supported that the start of the oversight visits be in Gauteng.

The Chairperson said there would be oversight visits in each term and all the other provinces would be visited and there would be a focus on the rural provinces. She said the visits would be unannounced.

Ms Masiko raised the issue of child maintenance where payments were made to the courts but not transferred to the mother. 

The Chairperson noted a case brought to her attention where people in shelters had difficulty accessing NSFAS funds because their application was declined because the father earned above the threshold level and the children become suicidal.

Ms Masiko noted that the Department of Justice (DoJ) acknowledged that they were experiencing backlogs that could take 11 months to deal with, however schools did not wait for the DoJ for payments of school fees.

The amended first term programme was adopted.

The minutes for 25 January 2022 and 1 February 2022 were adopted.

Report of the Commission for Gender Equality (CGE) on Elections and Gender Mainstreaming
Ms Tamara Mathebula, Chairperson of the CGE, said SA had translated gender equalities into law and policies to international minimum standards.

Due to time constraints, the Chairperson said the meeting would reschedule hearing the Research Report of the Commission for Gender Equality as well as the report on Government’s Emergency Response Action Plan (ERAP) on Gender-based Violence and Femicide.

Ms Jamela Robertson, CEO of the CGE, made the presentation and gave a brief background to the CGE 2019 report that assessed issues of balanced gender representation, participation and political empowerment. The six major political parties represented in the National Assembly between 2014 and 2019 were selected for assessment in terms of their policy programmes to promote gender equality (that is, the ANC, DA, EFF, IFP, UDM and VF+).

It also analysed gender compositions of party nominations/candidate lists to determine the comparative proportions and placing of female and male candidates on the lists. Election outcomes were analysed to determine gender balance among elected representatives in the National Assembly, NCOP, and all the nine provincial legislatures, national and provincial cabinets.

She then spoke to pre-election findings on party manifestos and the findings on election day. On the post-election findings on the National Assembly, there was a 5% increase in women’s representation to 45% in the National Assembly in 2019, with the ANC at 51% having the highest percentage of women representation. In the NCOP, there was a significant long-term decline in women's representation from a high of 40 % in 2004 to its lowest ever level in 2019 at 21%. There was an increase in the number of women ministers from 40% in the 2014 Cabinet to 50% in the 2019 Cabinet. The 2019 elections saw an improvement in the level of women’s representation at provincial legislature level, from 37% to approximately 44%. This was a significant improvement of almost 8%. She then spoke to the makeup of provincial cabinets and provincial premiers and Speakers and other office bearer positions.

She then moved on to observations and challenges. The first key conclusion was that significant advances, in the form of an increase in the overall numbers of women represented in the National Assembly and provincial legislatures, were made following the 2019 national and provincial elections. These advances were not random occurrences but symptomatic of widespread, systematic and deliberate actions taken across various institutions. The areas of lack of progress were a reflection of the failure by many political parties to adopt appropriate internal gender positive policies and practices, including adoption and adherence to specific numerical gender quotas. The need to promote gender equality and transformation remained a voluntary activity. Without a clear national legislative framework compelling political parties to adopt a specific numerical gender representation quota many political parties will remain resistant to adopting the necessary internal gender transformative policies and practices to promote gender equality and greater women’s representation and participation in politics and governance.

The report's key recommendations were that greater support and encouragement should be provided by civil society organisations, gender activists and other key role players in the gender sector in South Africa, to put pressure on political party leaders to ensure that their parties are committed to clear and concrete gender equality targets.

Civil society organisations should lobby leaderships of institutions of government such as the two Houses of Parliament, the provincial legislatures and the respective national and provincial cabinets to adopt formal gender equality targets and representation quotas.

The CGE, together with other key stakeholders in the gender sector, should lobby for the amendment of the current electoral legislation to ensure that political parties registering to contest national, provincial and municipal elections, are required to meet the 50/50 gender quota in their candidate lists and that in line with this recommendation, the current Electoral Commission Act 51 of 1996 be amended to give the Independent Electoral Commission (IEC) the power to monitor and enforce, the application of the 50/50 gender quota. In the meantime, before the necessary legislative amendments have taken place, all political parties registered to contest the local, provincial and national Elections adopt a voluntary 50/50 gender parity quota.

Discussion
The Chairperson queried the representation numbers of the IFP given that she knew that the IFP had three women out of a total of 10 MP members.

Ms Ntlangwini also queried the ACDP numbers, given that the ACDP had one women representative.

Ms Robertson said that the CGE analysed the 2019 numbers soon after election results.

Ms Robertson said that maybe the CGE while analysing the numbers immediately it was made available, also needed to observe and take note of the numbers in the interim period after the elections.

Ms Ntlangwini said the report needed more work in the accuracy of its graphs as the figures for the chief whips reflected in some of the graphs were not accurate. She said the CGE needed to do a study on what political parties claimed and the actual numbers of members.

On women empowerment and women structures of the EFF, she said the relevant documents were available on various media platforms.

Ms Masondo said she was happy with the way the ANC was improving its numbers in all sectors.

Ms Masiko said the responsibility lay with political parties on what they put forward in terms of numbers. There should be a deliberate attempt by political parties to meet their responsibilities on women’s representation. She noted with concern the regression in provincial representation and that there were only two premiers who were women. She said civil society must hold political parties accountable for their lack of representation of women.

Mr Mphithi said there should be an intentional push for women and young people’s inclusion in representation. He said all parties should be reviewing whether they were promoting gender equality within government and tools should be used to promote gender equality. He said he did not support the second last recommendation of the CGE. He said the political philosophy of the DA did not support a quota system. He supported the other three recommendations. He said the DA needed to do a lot of work regarding representation. He was not happy with women and youth representation, and applauded organisations that were able to increase women’s representation.

Briefing by the South African Human Rights Commission on lack of safety and security measures in schools for children with disabilities
Ms Fatima Chohan, SAHRC Deputy Chairperson, conveyed the apologies of the Chairperson of SAHRC for his absence as he was experiencing electricity supply problems. She introduced the SAHRC, which was mandated to promote and protect and to monitor and assess the observance of these rights. SAHRC was empowered to investigate and report on the observance of human rights and take steps to secure appropriate redress where human rights were being violated.

Commissioner Adv Bokankatla Malatji spoke to the background and purpose of the report. SAHRC had been concerned about conditions in special needs schools in the province for some time. In 2015, SAHRC investigated the deaths of learners at the Christiana School for the Deaf. Thereafter the Commission determined that a wider probe was necessary, based on-site inspections and research indicating that over half a million learners with disabilities had no or limited access to education in South Africa. The hearing informing the report presented was convened against this backdrop. The purpose of the hearing was to probe and address the challenge of the lack of safety and security measures in schools for learners with disabilities in the North West province against the rights to education, protection against discrimination and the right to safety and security.

The findings of the report were that the current state of much special school infrastructure, particularly hostels, in the North West province posed a direct and imminent threat to the health and safety of learners with disabilities and there was a general awareness of the unsafe conditions and the need to upgrade infrastructure. The current legal framework was over-reliant on non-binding guidelines or policies, many of which include a budgetary qualification and/or require only inappropriate “progressive” compliance. Special school hostels should be regarded as “school infrastructure” for the infrastructure norms and standards while at the same time the norms and standards were not nuanced enough to ensure the safety and security of learners with disabilities in residential special schools in the North West province. No safety norms and standards were in place to establish the minimum qualifications and experience of special school hostel and support staff, nor were there adequate staff development policies in place.

Provincial and district department officials and school governing bodies (SGB) were not held accountable for failing to ensure safety compliance in special schools. There was inadequate monitoring of special schools in the North West province. Schools lack the funds to implement infrastructure adaptations and are often under-resourced and safety measures are therefore neglected. The policy framework relating to post-provisioning for special schools and residential special schools, in particular, was inadequate. The Provincial Department was capable of establishing special schools with compliant infrastructure and equipment to alert children with disabilities to emergencies, but it was disturbing that this only followed an incident in which learners died. This suggests that, due to a lack of political will, insufficient effort is being made to better the conditions at special schools.

SAHRC’s broad recommendations were that a meeting with the National Department of Basic Education include the following agenda items:
-Policy drafting and ways in which the DBE can ensure that adequate and ongoing support is provided to the schools for learners with special needs and to ensure the standardisation of specific national policies, such as codes of conduct, sexual harassment and assault, health and safety and post provisioning
-Vacancy rates and the lack of essential staff in schools for learners with special needs needed to be addressed.
-National audit to be conducted on the state of all schools for learners with special needs
-Quality assurance to be addressed by district or provincial offices’ monitoring and evaluation
-Funding allocations to be given to poorer and outlying schools, and a specific examination into cases of abuse at these schools and hostels, and the development of a streamlined process to deal with perpetrators.

Mr Osmond Mngomezulu, SAHRC Provincial Manager for North West Province, spoke about the outcomes. During the launch of the Report, the Head of Department of the NW-DoE affirmed the Department’s commitment to implement the recommendations contained in the Report and SAHRC took steps to monitor the implementation of the recommendations which revealed that the reporting obligations were not complied with. SAHRC also conducted an in loco inspection and meeting at Christiana School for the Blind on 7 February 2019 as well as at North West School for the Deaf on 8 August 2019.

SAHRC’s broad observations were that the DBE and North West Department of Education did not comply with their obligations to report to the Commission on the implementation of the Report. The shortage of educators, teacher’s assistants and hostel staff remains a challenge in special schools. There is lack of access to adequate healthcare services arising from the shortage of occupational therapists, nurses and all therapeutic personnel. There was uncertainty whether any persons in contact with learners with disabilities were checked against the registers in the Children’s Act and the Sexual Offences Act. The physical infrastructure of schools, excluding North West School for the Deaf, did not meet all legislative norms and standards to accommodate learners with special needs.

Discussion
The Chairperson said she did not get the sense that SAHRC was serious in making departments and individuals accountable for what happened in the schools. Why were provincial and district officials not held accountable? What was the role of the Department of Women in implementing some of the recommendations made? Did the SAHRC engage with the DBE and the Portfolio and Select Committees of Education because this matter was part of their competencies and oversight? What was the role of police in ensuring safety of children at special schools? Did SAHRC have a recommendation regarding the lack of funding? She asked if CGE made any cost analysis. She said the investigation was done in 2015 and it was now 2022 and the Committee would be interested in what was happening in other provinces regarding special schools. How useful were cameras at schools in rural areas where there is no electricity or internet connection? She said the investigative hearing into residential hostels in special schools in the NW province were overwhelmingly unsafe structures that pose a danger to learners with disabilities. What was the status of these schools to date? Had SAHRC engaged with an organisation representing parents of disabled children as all stakeholders need to be taken on board? She felt the report should include how many had been held accountable.

Ms Ntlangwini said the key focus was on children with disabilities. She said that if the North West province was in this condition, then imagine what was happening in other provinces and there would be a possibility of having a case similar to that of Life Esidimeni. She said she did not see any accountability for the three lives that were lost. She acknowledged that SAHRC could only make recommendations, but the recommendations were done in 2015 and it was now 2022 with nothing seemingly having changed. She said she was shocked to hear of a school having to buy water from a mine.

The Chairperson said the SAHRC had a responsibility to promote and protect the rights of the disabled according to their mandate.

Ms Ntlangwini said she did not dispute this, but ultimately it was the responsibility of the DBE, and it should take responsibility.

Ms Masiko said it was important to know what the current state was in all the provinces. South Africa was a signatory to the UN Convention on the Rights of Persons with Disabilities and given the findings of the report, had SAHRC engaged with the Department of Women on these findings? Who was monitoring the implementation of the recommendations, was it the Department of Women or SAHRC?

Mr Ngcobo said the DBE must take measures to implement the recommendations. He asked if SAHRC had any plans to conduct a survey throughout the country especially for special schools in rural provinces. Was SAHRC able to hold meetings with the DBE and what were the outcomes of the meeting? Was the report shared with the Portfolio Committee on Basic Education and the departments of health and social development in the North West province? His last comment was the fact that there was a large number of children who lacked access to education and he asked if this situation had improved or become worse.

Mr Mphithi asked why the report did not point out the people responsible. The Department should be able to respond to issues that fall under their jurisdiction. He said he had seen on an oversight visit that many schools were unregistered and that no education or training was taking place. There needed to be a countrywide investigation. He said there was a need to ensure that recommendations of SAHRC as it related to the Committee and the Department were dealt with.

Ms Masondo asked how the DBE was budgeting for special schools. He said there was a need to invite other provinces to get information on special schools.

Ms Chantal Kisoon, SAHRC COO, apologised for the presentation. She said their understanding was that SAHRC had to present the report and therefore did not take the opportunity to give the Committee information on work that had happened since then.

She then gave information on work done since then. In 2018 SAHRC had undertaken a national study to look at special needs schools that had hostels. It found that there was a need for a more updated look at what the situation was. The sample threw up worrying reports and those observations were not different from the North West investigation report. Civil society bodies had tried to accumulate data on the number of children with special needs without access to basic education which Human Rights Watch had estimated to be 600 000. The study also showed that most educator and SGB staff and non-educator staff were not aware of the norms and standards. SAHRC had concerns over the policies the schools adopted as most schools had not had any clear guidance in developing their policies and staff were not adequately trained or vetted. This information could be shared with the Committee.

Another concern was the unclear complaint mechanisms within the schools. SAHRC was monitoring all schools throughout the Covid pandemic and reacting when concerns were raised. SAHRC also had interventions with the DBE. SAHRC would litigate if there was no cooperation and concerns were not addressed or engage in interaction to get a resolution to the issue. In the North West, SAHRC was given undertakings on remedial actions steps like for example the construction of a school but in other instances, the responses were not what SAHRC needed the North West province to do.

She said SAHRC was taking action regarding school infrastructure in the North West province, where a number of schools still had asbestos construction materials.

She said SAHRC was a recognised body by the United Nations and liaised closely with the UN Committee on the Rights of the Child and the Committee on Economic and Social Rights and shared with them SAHRC’s concerns. The Committee on the Rights of the Child had called for the strengthening of bodies like the Human Rights Commission with adequate resources so that it could cover 26 000 schools in the country. Organs of state were obliged to report to the SAHRC and to take up its recommendations. These engagements continue to take place but the was an expectation based on the mandate of the SAHRC that every department that monitors, evaluates and recommends corrective action be part of the architecture of every department and in every school.

She said SAHRC was grateful for the Committee’s undertaking to engage with the accountable authorities. SAHRC had interventions at the international level on an independent monitoring mechanism which is intended to be a more diverse mechanism comprising multi-party members which includes civil society members and experts. There had also been engagements with the Department of Justice to which the SAHRC reports.

On the CCTVs, she said it was more of a tool to be used to facilitate schools’ ability to conduct wider monitoring, but this was a big ask at this point. The recommendations broadly will require bodies to take action which would require them to assess their budgets.

She said the Committee on the Rights of the Child had taken on board SAHRC’s recommendations.

Mr Mngomezulu said there were two reports and a hearing was held in March 2018 on the report under discussion, with the report launched in August of that year. There was a separate report for the incident in 2015. He said the report under review not only looked at the incident in North West that led to a death but also looked at the province and the national picture.

On the funding issue, he said one of the recommendations was around the ring-fencing of some of the funds.

On the issue of cost analysis, he said the understanding was that it would flow from an audit the Department would undertake which would identify gaps.

On the issue of stakeholders, he said he fully took the point made. SAHRC would take all the Commission’s reports and do an analysis of the monitoring and evaluation component and instituting a broader institutional monitoring framework. 

The Chairperson said people had died and children with disabilities have continued to suffer. She asked whether it would be correct to say that SAHRC officials contributed to the violation of rights of children with a disability because they had not ensured compliance; that liable people were not held accountable; and that after seven years there was no progress. All issues should have been addressed after working on it for seven years. She said the Committee would be following up on the report as the Committee had been receiving many complaints. Some parents could not pay transportation fees as the schools were very far from them. After seven years the SAHRC’s recommendations should have led the relevant departments to address issues that had been raised. The matter was serious as people with disabilities had died. It was as if no one was listening to them.

Mr Mngomezulu said SAHRC was not complicit because the Constitution was clear on who the responsible body was and what SAHRC’s role was. If there was a failure by the responsible body, SAHRC had taken steps to point out the errors and make recommendations for corrective action. Some of these steps were taken and some were not, and SAHRC was continuing with its oversight mechanisms.

He repeated that there were two reports and that the 2015 report specific to schools made a number of recommendations which included that the South African Council for Educators (SACE) take disciplinary action on the information SAHRC would send them. The South African Police Service (SAPS) was requested to initiate criminal proceedings and that Legal Aid takes steps to support the families and to aid parents in legal representation. Oversight was done on this and a status report was available. He said there was a point where those responsible must cooperate with SAHRC.

Ms Kisoon said it was not a source of comfort for SAHRC that vulnerable groups continued to receive little attention from implementers and responsible bodies, and SAHRC was heartened that this Committee would exercise oversight.

She then responded to a question that had been posed but not answered. She said SAHRC had tabled the report with the Speaker of Parliament in 2019 and highlighted that the report was of significance to the DBE. A number of interventions were made with Parliament on the reports and in 2017 SAHRC had presented to the Portfolio Committee on Human Settlements touching on special needs housing and schools. In 2020 it appeared before the Portfolio Committee of Justice and Correctional Services where SAHRC raised their concerns. In February 2020 the DBE gave a status report to the Portfolio Committee on Basic Education saying that the department was processing the recommendations of which one related to the special schools report. SAHRC had gone further and had had interactions with the UN Committee on the Rights of the Child and with the Rights of Persons with Disabilities and SAHRC had submitted its reports to the UN Committee. SAHRC had therefore monitored the level of commitment and compliance to the reports and brought it to the attention of different portfolio committees.

On whether this report was provided to the MEC of the North West province, she said that in general all parties that were involved or implicated were provided copies of the findings and the report, so the MEC did receive the report and it was brought to the attention of the Premier of the province in 2019 calling for the recommendations to receive due attention and for oversight to be done on its implementation.

She said UNICEF was supporting SAHRC in looking after the rights of children, education and special needs.

Commissioner Adv Malatji acknowledged the progress that the government had done regarding special schools for children with disabilities has done a lot, but at the same time, he had observed vital things that should be improved. Some of the instances were a constant worry hence the decision to make the investigation a provincial investigation. The investigations were done, and recommendations and follow-ups were made. One of the Commissioners had the task of meeting with the MEC of Education in the North West and the HOD of Education in 2019 to make him aware of non-compliance and non-implementation of the recommendations.

He then spoke about taking schools to court if they discriminated against children with disabilities seeking to enroll and also to the role of civil organisations and their role in guiding and advising the SAHRC. His office had made proposals to SAHRC that a monitoring body is established which will work with SAHRC. There could however be a problem with the funding of such a body. He asked that the Committee assist in lobbying for such a monitoring body.  

On what has been done, he said SAHRC wrote lots of reports and recommendations which were then not implemented by the responsible body and that Parliament in the form of the portfolio committees make some follow-ups.

Ms Chohan said that a lot of work had been done. She said the reports where children died should be shared with the Committee. She said it was apparent that the Committee was most concerned with the health and safety issues and did not want to see a repeat of what happened in 2015 and was asking SAHRC whether the same set of circumstances would not be repeated or be repeated somewhere else. The litmus test was whether things had changed for the better. SAHRC would need to work with other responsible oversight bodies because SAHRC did not have the resources to be everywhere and bring on board provincial bodies and legislatures together with portfolio committees. More would need to be done regarding outcomes of investigative reports and SAHRC’s monitoring framework to ensure implementation.

The Chairperson said the Committee awaited the reports to be forwarded to them.

The meeting was adjourned.