Chairperson, a tribute to the outgoing human rights commissioners is in order before our new commissioners are voted into office.
Seven years ago Parliament voted 11 new commissioners into office. The President, who must sign their appointment and who has no discretion in the matter, however, appointed only five.
Despite their diminished number, Chairperson Jody Kollapen and Commissioners Zonke Majodina, Leon Wessels, Karthy Govender and Tom Manthatha have carved out the kind of place for the Human Rights Commission that we envisaged, first in 1994, and then in the final Constitution. They did so well that the Chapter 9 Review recommended changing the law to prolong their terms of office, pending the possible proposed creation of an umbrella rights commission.
Now, that amendment has not occurred, but, more seriously, nothing else has been done to bring their law, passed in 1994 - the very first statute passed here - in line with the final Constitution. This neglect, in fact, played a role in the appointment of only five commissioners seven years ago.
The newly constituted Justice committee intends to correct all of this, and makes an early start today by recommending six persons to hon members, which brings their number then to seven. Budgets permitting, we want to appoint more.
This is a good beginning. Moreover, the new commissioners bring some of the expertise we need. Dr Danny Titus, who holds an LLM and an LLD from Leiden University, all but wrote the book on policing and human rights, while Adv Malatji, as Head of Legal Services of the SAPS in Limpopo, taught policemen not to shoot first and settle damages claims later.
He is South Africa's very first black blind advocate and he will drive the rights of the disabled at the SAHRC, and government can moreover learn a thing or two from him about job creation.
The DA acknowledges that it has been accommodated in the list serving before hon members today. We have been accommodated. We will, nevertheless, abstain in order to indicate our discomfort at the inclusion of one candidate, in particular.
I do feel that I must place on record the fact that Adv Lawrence Mushwana, the outgoing Public Protector, repeated the very sentiments which gave rise to a dispute between the ad hoc Chapter 9 committee and himself a year or so ago. We advised him in the course of that review that a Chapter 9 body, albeit an organ of state, is not subject to the dictates of co-operative government. It stands to reason. We cited the Constitutional Court's judgment - that is, IEC v Langeberg Municipality - that these institutions must "manifestly be seen to be outside government".
Imagine my disbelief, then, when Adv Mushwana said in his interview that he continued to hold the view that the Chapter 9 institutions could co-operate with government because they were institutions "within government". When I challenged him to get this on record, he said that they were not part of government, but that we had to "look at reality, the President appoints them".
The reality is that it is this body, the National Assembly, which chooses them, that votes them into office, which holds them to account, while simultaneously assisting and respecting them.
I will assist and I will respect from the moment the President signs on the dotted line. That is why I put this on the record now - I have now done it - why we will abstain from this vote. But we will hold it to account in future. [Applause.]
Chairperson, the appointment of commissioners for the SA Human Rights Commission is a very important moment in the further development of constitutional rights in South Africa and definitely deserves the careful attention of the National Assembly.
Cope supports the candidates as recommended by the Portfolio Committee on Justice and Constitutional Development. However, concerns are raised regarding one of the candidates, Adv Loyiso Mpumlwana. Parliament must ensure the recommendation of individuals who have the necessary commitment to the protection and advancement of human rights and constitutionalism in South Africa, as well as the qualities and track record to demonstrate their suitability for such a significant position.
Although not specifically questioned about it, the impression created from Adv Mpumlwana's CV was that he was first appointed as a senior legal adviser in the premier's office in the Eastern Cape and thereafter as the regional head investigator for the Truth and Reconciliation Commission.
What the CV did not specify is the fact that he was employed in the premier's office at the same time that he was employed by the TRC. From a statement issued by the TRC, he was found guilty of 8 out of 10 charges brought against him relating to fraudulent misrepresentation.
Clearly, Adv Mpumlwana does not have the desirable attributes that South Africa demands from a human rights commissioner or, at the very least, have the attributes to be regarded as a fit and proper person with high competence and integrity.
The integrity and ethical standards of the SA Human Rights Commission lie at the very heart of the fair and impartial commission envisaged by the Constitution. With a candidate like Adv Mpumlwana one can only hope that the SAHRC, like the TRC, will not be embroiled again in controversy. Thank you.
Chairperson, we are voting to give the Human Rights Commission a not-so-good membership, which is worse than it could have been, had the best candidates been chosen. Yet the IFP is voting in favour if it, because it is much better than what the ANC wanted it to be and in acknowledgement that substantial given-and-take between the ANC and the non-ANC components of the committee has indeed occurred. In this respect, we thank Chairman Ramathlodi and the hon Holomisa, Jeffery and Ndabandaba for their leadership.
Our vote in support is also justified on account of Chairman Ramathlodi's initiative, endorsed by the committee, to harness the skill of all candidates shortlisted for the Human Rights Commission into an advisory panel to the Justice committee, on which they will serve on a voluntary basis and without any remuneration or cost to Parliament.
Therefore, even though some of the best candidates cannot provide their skills and leadership to the Human Rights Commission, they can nonetheless contribute to the overall formula of governance through our own committee.
Our vote of support is also based on the undertaking made during the interviews by all nominees to turn over a new page. Until now, the Human Rights Commission has been lame, weak and meek. In the past 15 years, much more has been achieved in the protection of human rights by NGOs, which brought litigation against government in actual redress of human rights violations in spite of their much smaller budgets, which is more than could be said for the Human Rights Commission. This must now change.
The Asmal report clearly indicated that Adv Mushwana misunderstood his role under the Constitution when he was the Public Protector and acted in a subservient and advisory capacity to government. This has been pointed out to him during the interviews and his inclusion on the commission is on the basis of him agreeing to change his ways.
The commission is not there to advise and counsel government or exercise oversight over its department. Its primary role is that of being a defender of freedom and liberty, and stepping up to the task of challenging and redressing any human rights violations in an uncompromising fashion whenever and however they occur. Thank you. [Time expired.]
Chairperson, the ACDP would firstly like to acknowledge the sterling work done by the outgoing commissioners under the leadership of Jody Kollapen. We should remember that the commission is mandated with the very important task of monitoring the progressive realisation by government of socioeconomic rights.
The ACDP also wishes to acknowledge the accommodating attitude displayed by the ANC during the process. We led the questioning of candidates on their understanding of their mandate and how they saw its relationship with the executive in Parliament, and we are grateful for that opportunity.
However, the ACDP shares reservations expressed by my colleagues concerning Adv Mushwana. We also have reservations about Adv Mpumlwana, who, in response to a question indicated that, if he had his way, he would ban the private practice of law and medicine. This is hardly the response expected from someone steeped in a human rights tradition. Consequently, the ACDP will abstain on this vote. Thank you.
Chairperson, there was quite an extensive process undertaken by the Portfolio Committee on Justice and Constitutional Development in deciding on names to fill the vacancies in the Human Rights Commission. To recap: The terms of office of four of the five existing full- time members of the Human Rights Commission will be expiring. One member - that is Pregs Govender - will be left and the one part-time member's term is also expiring.
Adverts were placed in the media in April, with the closing date in May. The committee and a number of nominations were received from that. The committee decided to readvertise, as the advert didn't specify that we may want to appoint part-time commissioners. Further adverts were therefore placed in the media closing on 4 September 2009. There were 217 nominations received. We shortlisted 32 and then had interviews from 14 to 17 September. Two nominees withdrew and three more were unavailable. In total we interviewed 27 people.
The quality of the people who were interviewed was very high and the committee was very sorry that it couldn't appoint more people. One part of the committee report reflects the desire that more funding could be found to engage more commissioners. We nevertheless recommended four full-time and two part-time commissioners, whose names are in the ATCs of Friday.
We also felt that it would be very useful if we could use the expertise that we came across during the interviews, and try to encourage a number of those people who were not successful to give technical support on human rights to the Justice committee as we do our work.
In total, after much deliberation, having to consider the whole issue of representivity, the issue of area and distribution, these are the names that the committee came up with.
In response to two of the previous speakers, on the issue around the role of the Human Rights Commission, it is not an NGO; it is there to protect human rights, but part of it is to engage government on that. If you read the Human Rights Commission's report, they have received over 1 000 complaints, which were dealt with without having to write formal reports and come up with findings. For example, people who do not have ID books, people who weren't able to get pensions; and those were done through engagement with government.
Of the 13-odd reports that they have produced since 2002, about 100 have actually been findings against government, and that was during Adv Mushwana's term. I think it's been unfortunate that some of the issues were raised in the interviews, for example, Mr Swart referred to Adv Mpumlwana's comment about not having private lawyers. I think it was misconstrued and misunderstood.
It was in the context of the fact that if you want equality, then you don't really have equality if a richer person can employ a better skilled or better lawyer. It was in that context that he made the comment. As for the comments by Ms Adams, unfortunately she didn't raise them in the hearing. It would have been useful to have put those to Adv Mpumlwana and drawn them to the attention of the committee, rather than making a display in front of the House.
Having said that, I would like to thank everybody who participated in the process, the people who applied and the people who came to the interviews and participated in them - I do so on behalf of the chairperson, who is unable to be here, as he is at the Judicial Service Commission hearings - the members of the committee who had to wade through a lot of papers and a lot of CVs and sit through endless hours of interviews. Therefore, as the ANC, we support the names that have been put forward in the report before the House. Thank you. [Applause.]
Debate concluded.
Mr Chairman, I believe we have to go to a vote on this anyway, so I'm not sure why you are calling for objections.
That is the procedure, and I am not sure why you are questioning it now.
I think we should talk to the Table staff and get this sorted out.
No, no. Just sit down, hon Ellis. Question put: That the nomination of Ms L Mokate, Adv B J Malatji, Adv L M Mushwana and Adv L K B Mpumlwana for appointment as full-time commissioners and of Ms J Love and Dr D Titus for appointment as part-time commissioners on the South African Human Rights Commission be approved.
Mr Chairman, I don't think it is as simple as that, sir. The Constitution says there has to be a vote in Parliament on this and there has got to be a simple majority.
Hon Ellis, I am coming to that guide. You are ahead of us.
Mr Chairman, the DA will be abstaining from this.
Thank you very much. We will note that abstention. I will now proceed, hon Ellis. You are ahead of me. These are the guidelines we follow every time we have to decide on something.
AYES - 217: Abram, S; Adams, L H; Adams, P E; Ainslie, A R; Baloyi , M R; Bam-Mugwanya, V; Bhengu , N R; Bhengu, P; Bikani, F C; Blaai, B C; Bonhomme, T J; Booi, M S; Borman, G M; Boshigo, D F; Botha, T; Botha, Y R; Cebekhulu, R N; Chabane, O C; Chikunga, L S; Chiloane, T D; Coleman, E M; Cronin, J P; Cwele, S C; Dambuza, B N; Davies, R H; De Lange, J H; Dhlamini, B W; Diale, L N; Dikgacwi, M M; Dlamini, B O; Dlodlo, A; Dlulane , B N; Doidge, G Q M; Dubazana, Z S; Dube, M C; Dunjwa, M L; Farisani, T S; Fihla, N B; Fransman, M L; Frolick, C T; Fubbs, J L; Gasebonwe, T M A; Gcwabaza, N E; Gelderblom, J P; George, M E; Gigaba, K M N; Gina, N; Gololo , C L; Goqwana, M B; Gumede, D M; Gxowa, N B; Hajaig, F; Hanekom , D A; Hangana, N E; Jeffery, J H; Jordan, Z P; Kekane, C D; Kenye, T E; Kganare, D A; Khoarai, L P; Kholwane, S E; Khumalo, F E; Kilian, J D; Komphela, B M; Koornhof, G W; Koornhof, N J J v R; Kota-Fredericks, Z A; Kotsi, C M; Kubayi, M T; Landers, L T; Lebenya- Ntanzi, S P; Lekgetho , G; Lishivha, T E; Luthuli, A N; Luyenge, Z; Maake, J J; Mabaso, X; Mabedla, N R; MacKenzie, G D; Madasa, Z L; Madlala, N M; Mafolo, M V; Magagula, V V; Magau, K R; Magazi , M N; Magwanishe, G ; Makasi, X C; Makhuba, H N; Makhubela-Mashele, L S; Makhubele, Z S; Malgas, H H; Maluleka, H P; Maluleke, J M; Manana, M C; Mandela, Z M D; Mangena, M S; Martins, B A D; Mashiane, L M; Mashigo, R J; Mashishi, A C; Masutha, T M; Mathebe, D H; Mathebe, P M; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Maunye, M M; Mavunda, D W; Mbili, M E; Mdaka, M N; Mdakane, M R; Mentor, M P; Mgabadeli, H C; Mjobo, L N; Mkhize, L N; Mkhulusi, N N P; Mlambo, E M; Mlangeni, A; Mmusi, S G; Mnguni, P B; Mnisi, N A; Molebatsi, M A; Molewa, B E E; Morutoa, M R; Moss, L N; Motshekga, M S; Mthethwa, E M; Mthethwa, E N; Mushwana, F F; Muthambi, A F; Nchabeleng, M E; Ndabeni , S T; Ndlovu, V B; Nel, A C; Nelson, W J; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Ngonyama , L S; Ngwenya-Mabila, P C; Nhanha, M A; Nhlengethwa , D G; Njikelana, S J; Njobe, M A A; Nkwinti, G E; November, N T; Ntuli, Z C; Nxumalo, M D ; Nyalungu, R E; Nyama, M M A; Nyanda, S; Nyekemba, E; Oliphant, M N; Oosthuizen, G C; Oriani-Ambrosini, M G; Padayachie, R L; Pandor, G N M; Peters, E D; Petersen-Maduna, P; Phaahla, M J; Phaliso, M N; Pillay, S M; Radebe, B A; Radebe, G S; Ramatlakane, L; Ramodibe, D M; Rantsolase, M A; Rwexana, S P; Saal, G; Scheemann, G D; Sefularo, M; Segale- Diswai, M J; Selau, G J; Sexwale, T M G; Shabangu, S; Shiceka, S; Shilowa, M S; Sibanyoni, J B; Sibhidla, N N ; SIngh, N; Sithole, S C N; Sizani, P S; Skosana, J J; Skosana, M B; Smith, V G; Snell, G T; Sogoni, E M; Sosibo, J E; Suka , L; Sulliman, E M; Sunduza, T B; Surty, M E; Thabethe, E ; Thobejane, S G; Tinto, B; Tlake, M F; Tobias, T V; Tolo, L J; Tsebe, S R; Tseke, G K; Tsenoli, S L; Tshwete, P; Tsotetsi, D R; Turok, B ; Twala, N M; Vadi, I; van Rooyen, D D; Van Schalkwyk, M C J; van Wyk, A; Vukuza-Linda, N Y; Williams, A J; Xaba, P P; Xasa, T; Yengeni, L E; Zondi, K M; Zulu, B Z.
ABSTAIN - 62: Boinamo, G G; Bosman , L L; Coetzee, T W; Davidson, I O; De Freitas, M S F; Doman, W P; Dreyer, A M; Du Toit, N D; Dudley, C; Duncan, P C; Ellis, M J; Farrow, S B; Figlan, A M; George, D T; James, W G; Kalyan, S V; Kloppers-Lourens, J C; Kohler-Barnard, D; Kopane, S P; Krumbock, G R; Lamoela, H; Lee, T D; Lorimer, J R B; Lotriet, A; Louw, A; Lovemore, A T; Marais, E J; Marais, S J F; Masango, S J; Maynier, D J; Mazibuko, L D; Michael, N W A; Mnqasela, M; Mokgalapa, S; More, E; Morgan, G R; Motau, S C; Mubu, K S; Ollis, I M; Pretorius, P J C; Rabie, P J; Rabotapi, M W; Robinson, D; Schafer, DA; Selfe, J; Shinn, M R; Smiles, D C; Smuts, M; Steele, M H; Steyn, A; Steyn, A C; Swart , M; Swart, S N; Swathe, M M; Terblanche, J F; Van Der Berg, N J; Van der Linde, J J; Van der Walt, D; Van der Westhuizen, A P; Van Dyk , S M; Waters, M; Wenger, M.
Question agreed to.
Nomination of Ms L Mokate, Adv B J Malatji, Adv L M Mushwana and Adv L K B Mpumlwana for appointment as full-time commissioners and of Ms J Love and Dr D Titus for appointment as part-time commissioners on the South African Human Rights Commission accordingly agreed to, in accordance with section 193(5)(b)(ii) of the Constitution.