Economic and Social Rights 2016/17 SAHRC Report

Meeting report

Opening Remarks

The Chairperson welcomed the representatives from the South African Human Rights Commission (SAHRC).  She informed everyone that that would be the last meeting for the Portfolio Committee on Human Settlements for the year. She apologised to the SAHRC for the postponement of the meeting, but the previous week there had been a House sitting in the morning.  The Committee was giving the SAHRC the opportunity to present before the House rose for the December/January recess.  One of the reasons for giving the opportunity to the SAHRC was that November was the month of looking at people with disabilities.  There was almost a full complement of Committee Members and the Chairperson hoped that Members would be enriched following the engagement with SAHRC. She noted that officials from the offices of the Minister and Deputy Minister were in attendance.  She noted that although the Department of Human Settlements was in attendance, the DG was not well and had been excused.  He was represented by the DDG, Mr Philip Chauke. The SAHRC could be assured that their concerns would be addressed.

Briefing by the South African Human Rights Commission

Adv Bokankatla Joseph Malatji, Commissioner: Older Persons and Disability SAHRC, thanked the Committee for having allowed them to make a presentation. When undertaking visits to various provinces, especially organisations for disabled persons, there had been a great outcry from those bodies about older persons, child-headed families and persons living with disabilities who needed special housing. They had lodged complaints with the Human Rights Commission who, therefore, had to attend to those complaints. When those complaints had been discussed with provincial government, SAHRC found that in two thirds of the provinces there was no policy in place, or they did not know about the national policy. It was the SAHRC’s request that the Committee should at see what it could do, so that ultimately the Department of Human Settlements had a policy in place which was implemented equally and uniformly by all departments so that the problems regarding Special Needs Housing could be addressed. He asked the that the policy brief of the Commission be presented.

SAHRC on the report on the Economic and Social Rights Research Policy Brief 2016-17

Ms Yuri Ramkissoon, Senior Researcher: Economic and Social Right Department SAHRC, said that during the 2016/2017 financial year, the Research Unit within the South African Human Rights Commission (SAHRC) undertook a study on the provision of adequate housing for people with special needs in South Africa. Furthermore, the SAHRC had a mandate in terms of the Constitution of the Republic of South Africa 1996, to monitor the realisation of economic and social rights (ESR) in the country. The Commission’s 6th ESR report and 2016 Housing report highlighted the need for housing projects to consider the requirements of people with special needs. Despite significant strides made by the Department of Social Development, the Department of Human Settlements (DHS) and Non-profit Organisations (NPO) sector, there was insufficient availability of Special Needs Housing (SNH) and, often, existing group housing was unaffordable to many vulnerable people.

The SAHRC research also showed that in 2016, approximately 94 mental healthcare patients died in 16 non-governmental organisations and three hospitals, after the Gauteng Department of Health (GDoH) had terminated its service provider contract with the Life Esidimeni Healthcare Centre. That figure had since increased. An investigation showed that the NGOs to which people were sent were not equipped to care for mental health patients, none were licenced, some were undergoing renovations, most lacked funding, and the transfer of patients was poorly coordinated and rushed.

The Esidimeni case illustrated not just the need for additional SNH facilities, but the need for institutional funding and capacity. Further, there was a need for coordination of non-governmental organisations that provided such services to the state and people. Following such lobbying by civil society organisations from 1995, the DHS had developed the SNHP (Special Needs Housing Policy) in June 2015.

The Special Needs Housing Plan (SNHP) set out the minimum requirements for applicant non-profit organsations, including eligibility requirements of target beneficiaries and funding arrangements. It described the funding model and costs and specifications, with a list of housing typologies such as foster care homes, safe homes, child and youth care centres.

Two Key Recommendations were:

-To utilise existing structures to ensure the provision of SNH in the short term, coupled with best practice training. Clarity was required on that recommendation because it had not been accepted.

-The development of an implementation plan.

Adv Malatji noted that when the Commission visited provinces, especially disabled people organisations, and other civil society organisations, there was a great outcry about the need for special housing by vulnerable people, especially older people, people with disabilities and child headed households.  They lodged complaints with the SAHRC, which then had to attend to those complaints.  When they discussed the complaints with provincial governments, two thirds of the provinces do not have any policy, nor did they know about the policy that was there.  The Commission, therefore, requested that the Portfolio Committee see what it could do so that DHS had the policy in place and that it was implemented, equally and uniformly, by all the departments so that the need for special needs Housing could be alleviated.

The Chairperson thanked the Commission for the presentation and noted that it was comforting that the interaction between the Commission and departments that was in progress. It was good to hear that a distinction had been made between individual housing needs and shelters. Before comments by the Members, she asked the Department to comment on the Special Needs policy so that Members did not raise issues that had already been addressed.

Briefing by Department of Human Settlements (DHS)

Mr Johan Wallis, Acting Deputy Director-General (DDG) for Policy Development, DHS, thanked the Committee for giving the Department an opportunity to respond. He said the Department had had a very fruitful meeting with one of the Commissioners on 7 November 2017. There were certain questions around the policy. He confirmed that, as part of the National Housing Code, the Department currently provided particular housing for persons with disabilities. There were specific norms and standards which could be applied in normal Breaking New Ground (BNG) houses or rental houses in relation to the needs of those people.

As was known, when people applied for a housing subsidy, they could indicate their particular type of disability and the province could fund such additional facilities, as required by the person, from the Human Settlement Development Grant. He confirmed that those policies were quite actively negotiated with all institutions looking after people with disabilities. It seemed that the provisions made for persons with disabilities were fair and applicable.

With regard to the Special Needs Housing Policy (SNHP), there was a need to understand very clearly that the ‘predicament’ of the Human Settlement Development Grant, was that the Department, through the provinces, would have to provide for the capital costs of such facilities, regardless of the size of the house. Norms and standards had to be applied to an individual taken up in such a facility. The challenge was operational costs. Those costs had to be borne by the relevant department, for example, the Department of Social Welfare or the Department of Health, depending on the special need at play. The Department of Human Settlement could not stand in for the operational costs for facilities. Therefore, the reference the Commissioner was making to the particular need for proper coordination became extremely important. It was easy to provide facilities but, firstly, registration was important for the NPOs of such facilities. The second issue was what happened if an NPO was deregistered as an NPO that provided particular care. The Department had thought about it very carefully and was not yet at the point of finalising that matter, because, if, for example, an institution was deregistered, could one take back the facility and transfer it to another facility? That was the challenge in such matters.

The third issue was about coordination between provincial departments of Human Settlements, that managed its allocation of human settlement grants, with either the Department of Health or the Department of Social Welfare. That was based on an application to which an MEC could say: ‘Yes, I am in principle approving a subsidy for a particular facility of a particular size for a particular group of people with particular special needs’. The Department of Health would have to affirm that the organisation taking responsibility was registered but the Department of Human Settlements would take responsibility for annual costs, exactly to prevent what had happened in the Esidimeni case. People there had complained that they had not received their grants to buy their basic necessities. Therefore, the recommendation contained in the presentation needed some very careful thinking.  He was not convinced by the argument that, because provinces managed Human Settlement Development Grants, and the Department of Social Development and the Department of Health were managed at National level, the problem could not be overcome. It was possible for National Health to give provincial Health a mandate, as would be the case with Social Development.

On the issue of the institutional subsidy, there was no doubt about that, as it was currently found in the code developed to support rental housing. The institutional subsidy actually went so far as to say it was a subsidy to an institution providing housing to people who would be able to take ownership after five years in a rental situation. For him, it was totally different from using the institutional subsidy as a special needs subsidy. The intention of developing the institutional subsidy mechanism was not to provide for special needs housing. He was not saying that Minister and MECs Committee, MINMEC, for instance, could not take a decision as an interim measure, or a short-term solution, to allow provinces to use that subsidy, although the size of the subsidy – currently about R110 000 for the institutional subsidy – would not be sufficient to provide for special needs housing. Immediately there was a misalignment that created problems, although there was a possibility that ways could be found to deal with it.

The Housing Act said that the Minister could approve housing programmes, after consultation with MECs within the context of MINMEC. As bureaucrats, the Department had developed a draft policy and had consulted very widely. The Minister had not given her approval to the policy as yet. It was hoped that the process would kick off in early 2018 but, the importance of the coordination between different government departments had to be addressed. Coordination would have to go through the cluster process etc. A political process had to be followed for the other departments to buy into it at a particular level, before MINMEC could make a final decision as to whether that was a programme to be taken up in the code. The Department believed that it could complete that type of process within a period of four to five months. The challenge for the Department to budget for Special Needs Housing was easy as the provinces had said that was just another subsidy of a different quantum, but other departments had to budget for operational costs.  The budget process for 2018/19 had been completed, but the reaction of other departments was not yet known.

Discussion

The Chairperson thanked the DDG as the Committee understood what was going on regarding the policy.  She noted that they had done oversight in seven provinces and one of the big issues was that there was no unit for special needs.  She asked that special needs units be created through that process.  In a social housing project, it was usually the ground floor where people with special needs were catered for.  Members usually inspected those units, even the bathrooms and showers, to ensure that that they were appropriate for people with special needs.  She was saying that was something that the Committee did, but it was not adequate.  It was not enough, but it was one area that was carefully checked during oversight visits.  She reminded Members that two weeks previously, when they were having a discussion, they had agreed that there was a need for the Department of Human Settlement and the Committee to hold a workshop, particularly around policy issues, and to discuss the Housing codes.  Now they knew what to add to the workshop so that Members could have an appreciation of the issues.  They had agreed that the workshop should happen even before Parliament opened.  She wanted the representatives from SAHRC to know that the presentation had assisted the Committee as they now understood that it was one of the urgent policy needs that had to be dealt with.

Mr M Malatsi (DA) wanted a sense of whether the policy was a duplication, and in the DDG’s interaction with SAHRC, would he consider it practical? In an ideal policy environment, would that policy address the concerns that the SAHRC sought to address?  In addressing the HSRC, he stated that he had not fully understood the point about the Department of Social Development and what the DHS needed to do with regard to that engagement.  He asked whether there had been direct engagement with municipalities or South African Local Government Association (SALGA) and what the outcome of that was because they carried most of the burden in terms of the work that was done.

Ms Ramkissoon responded that as the policy stood, when applying for capital funding, the application went to the Department of Human Settlements. If all the requirements were met, the Department at a provincial level could grant the capital funding. When one required operational costs and needed to fulfil requirements set up by the Department of Social Development, not just costs, but in terms of policies and procedures and such like, that went to the provincial office which then sent it to the National office. The National office would then have to okay it and then it went back to the provincial office, and the provincial office would then communicate with the applicant. The SAHRC felt that that was a lot of red tape. The Department of Social Development felt the need to keep the process because provincial departments were obviously not as capacitated as the Department of Human Settlements, but, ultimately, the SAHRC would like to see that red tape done away with.

Ms Ramkissoon added that the Department had cleared up the differentiation between the policy that municipalities had where they provided housing for individuals, i.e. institutional housing.  But in relation to housing for individuals, when SAHRC had water and sanitation hearings and went to the poorest areas in all nine provinces, at every single hearing, they got complaints from people with disabilities who were not aware of the policies where they would be reasonably accommodated in government housing. So, there was a lack of awareness.  She added that the SAHRC was a broad advocate of human rights principles which were not being applied, particularly in outlying municipalities.  If one engaged with those communities at the outset, before service delivery, and did a proper human rights engagement with proper transparency and access to information, a lot of those problems could be mitigated by doing the mapping at the outset.

Mr M Wolmarans (ANC) appreciated the presentation and acknowledged the response from the Department. He said that it was good that, at least, there was work in progress. At all levels the SNHP had not necessarily been understood as a separate policy.  It had been put between the codes.  His fear was that infrastructure was good to budget for, but a lot of buildings given to NGOs etc were derelict because they had not had an operational budget.  That was an important issue that would have to be dealt with.  On page 3, the Commission had mentioned Section 184(3), where it was incumbent on different departments to give information.  He asked if SAHRC had figures in relation to what was happening in the various provinces in relation to special needs housing development.

 

Mr M Sithole (IFP) asked whether SAHRC had the figures for child-headed households. He was concerned about the institutional subsidy mentioned by the DDG because it showed that there was a gap in providing for special needs persons in an institution.  He did not actually understand that point.  In the presentation by SAHRC, nothing had been said about violence against boys in relation to domestic violence.  He raised his concern about the rising death toll from the Esidimeni case. From the research point of view, what had caused funding from the private sector to decrease?

 

Ms Ramkissoon responded explaining that the SAHRC had broad figures of what was happening in different provinces and that could be provided to the Committee as required. Generally, SAHRC used STATSSA (Statistics South Africa) and their figures for child-headed families. The problem with child-headed families was that the figures were grossly under-estimated because, even if a census was done, a child might be with a caregiver or in the home of a family and they were actually afraid to reveal themselves as a child-headed family because they felt that the siblings that they were caring for, would be taken away from them. So, the SAHRC did not correct figures for child-headed families. It would take a lot of resources to go across the country to try to ascertain that kind of information. She added that it was important to note that SAHRC was working consistently with STATSSA to add questions to the Census and the General Household Survey and the general survey so that information that was missing from the survey could be obtained. 

Ms Ramkissoon noted that the deaths in Esidimeni had risen and it had not said anything about violence against boys. She said she was just using general examples but noting that violence against boys was heavily targeted and on the increase both in domestic abuse, and in abuse on the streets.

Ms Ramkissoon said the Commission had not done a proper study on funding issues but their sense, from the people they had been speaking to, particularly in the civil society space, where many civil society organisations were closing down, was that it was a combination of funding going to other African countries because South Africa was considered more middle-developed, and political movements across international spaces.  So, for example, when Donald Trump had come into power in the United States of America (USA), some funding from the US had dried up. That was about political movements, and that did ebb and flow, but there was hope that it was not permanent.

Ms V Bam-Mugwanya (ANC) thanked the presenters for covering so much but she wanted to know whether the SAHRC ever liaised with structures, such as the municipalities, to monitor the beneficiaries list to ensure that the typologies in the municipalities were followed, for example, municipalities could not just supply houses willy-nilly, but they were expected to provide as per need.  If the SAHRC monitored the beneficiaries list, it would make it much easier for the municipalities and the provinces to deliver adequate and relevant housing to people in need.  Secondly, did the SAHRC ever liaise with the special grants that were left to the discretion of the mayors, or did they ever monitor the lists of people who suffered after disasters, such as hurricanes, to check on people affected, especially those with special needs?

The Chairperson added that when the Committee had its oversight visits, it encountered discretionary funds in the mayors’ offices to deal with disasters, child headed families, people with disabilities et cetera.  The question was whether the Commission had ever interacted with SALGA and found out how those discretionary funds were distributed to ensure that they were appropriately used.

Ms Ramkissoon informed the Committee that the Commission constantly liaised with structures on the ground, civil society organisations, municipalities and with SALGA, hence the Commission was generally aware of what was happening on the ground. Importantly, it had offices in all nine provinces. The real workers on the ground were at the provincial offices - they visited communities and undertook awareness campaigns. Unfortunately, the Commission did not have the capacity to reach every municipality in the country and for that reason, civil society partners were relied upon, as well as national figures.

Ms Ramkissoon said that the Commission did not liaise with the Mayor or the Mayor’s office in relation to the discretionary fund. What the Commission did monitor was whether housing evictions were done with a proper court order, whether emergency alternative housing had been provided and whether the alternative housing was reasonable. The Commission did a lot of that and from their analysis of complaints, the majority of complaints in Gauteng were around either illegal evictions or evictions where reasonable accommodation was not provided, and quite a high number in the Western Cape as well. They found that the alternative accommodation was not suitable. That kind of thing was being constantly being monitored and SAHRC worked a lot with civil society on that as well.

Ms Ramkissoon added that the Commission did not keep tabs on the lists. It followed information that it received from the census, so it was aware of how many special needs people there were with disabilities in municipalities. The SAHRC did not have the capacity to cover 280 municipalities and assess their waiting lists, which was why they suggested that the provinces did a broad-based mapping to ascertain what type of special needs would be required and what the numbers were in respect of special needs. But, what the Commission did do, was to receive complaints from individuals who had not received homes, had not been put on a waiting list, had not received proper service from the Department, and so forth.

Mr M Bara (DA) noted that when the Committee went on oversight visits, they did see special needs housing and he wanted to know if the policy was seeking to have a different scope of application or whether it was to enhance what was already in place.  He thought that there was a need for integrated human settlements, where there would not be a need for specific projects for different people.  He wanted to know whether the policy talked about people with special needs on their own, or in an integrated environment.  Secondly, under recommendations, he saw the establishment of a coordination desk, for interdepartmental collaboration.  Who would set up that desk?  Who would be in charge of it?  Who would run the collaborated efforts?  If that was not specified, no one would take ownership of it.  Lastly, he was hoping that, once the whole policy had been adopted, there would be an addendum that would deal with specifications for wheelchairs etc.

Mr Wallis confirmed that there was an addendum. Specifications had already been developed on room sizes, square meterage needed for people with special needs. The Department believed that as part of their consultation process with the Department of Health and the Department of Social Development – even the Department of Correctional Services was part of the consultations – they were spot-on with the specifications.

Ms M Nkadimeng (ANC) had identified homeless people as amongst those with special needs.  She asked how the SAHRC dealt with homeless people.  She was aware that many homeless people had been given houses but had sold them and returned to the streets.  How could the SAHRC assist the Department to identify those people who were on the list of the homeless but had already benefited from a house?

 

Ms Ramkissoon said that the Commission did monitor the DHS waiting list because the Commission assumed that people without homes would register with the DHS and go on their waiting list. SAHRC had not dealt specifically with people who had sold their homes and went back to live on the street and, perhaps, more advocacy was needed on that matter.

The Chairperson appreciated the valuable input and questions.  She pointed out that when they grappled with the policy issues, there was no way that it was going to be completed without engagement with the Department of Social Development as the bulk of special needs persons fell under Social Development.  She noted that there would have to have a combined Portfolio Committee meeting with Social Development to discuss the policy.  It was not often that the Portfolio Committee had an engagement with Chapter 9 institutions.  She could not express her enormous appreciation for SAHRC being involved in the engagement.  Chapter 9 institutions were often overlooked but there was so much depth in them and such value in engaging with them.  The Commission had assisted in the Committee’s understanding of policy issues.  She declared that it was one of the most important meetings of the year for her.  In future, the Committee would take the initiative in inviting the SAHRC to present to the Committee.

Mr Philip Chauke Deputy Director-General: DHS started off with the statement: ‘special needs by their nature were the competency of the DSD’. He said he would try to explain the role of the DHS in relation to its two sister departments: the Department of Social Development (DSD) and the Department of Health. Around competency in terms of housing for people with special needs, there would be issues that dealt with medical care and there would also be issues around housing for disabled people. The Commission had to appreciate that, when it came to the role and responsibility of DHS, in terms of providing the infrastructure part, that the current provisions, as in the codes, were not enough for disabled people. It was not only houses that were required but also specialised care for those with special needs. So, the recommendation on page 13 where it was stated that the ‘DHS must assume primary responsibility’ fell short of the ‘care’ aspect. A comprehensive look had to be taken at what needed to be achieved.

Mr Chauke said that, regarding the need for joint planning with the DSD, he was appealing that the Department of Health should also be included because the two departments, as functional area experts, had a variety of grants that they were managing, and if the departments were all in one room, they could possibly make those grants available.  The Department of Health had a National Tertiary Services Grant of R10.8 billion which dealt with things like hospitals and health care. The other departments had to take responsibility for managing and conducting their core business.  But maybe more relevant to the DHS, was the Health Facilities Grant which dealt with existing hospitals, and that was one grant that had sufficient funding. Some Members had also mentioned specialised training. In the unfortunate case study at Esidimeni, although there were buildings, there were no people to take care of them. The Department of Health had Health Provisional Training Grants that could assist with providing training in the facilities. In that way, the objectives of the Constitution could be realised by helping to cater for vulnerable groups.

Mr Johan Wallis, Acting DDG: Policy Development, DHS, explained that the policy had not been approved by the Minister. What had been approved, was a funding mechanism for particular disabilities. Therefore, in a project, if a person was disabled, there were very particular norms and standards that determined the angle of the ramp for a wheelchair, etc. A process had to be followed: a subsidy application, then the province approved, then perhaps additional funding for the developer or contractor to build the requirements in a house for someone with a disability. He felt that the policy being put on the table was a practical policy.

Mr Wallis said that there might be some hiccups in the application of the policy due to the fact that real confirmation was required, but the NPO would receive the necessary grants, as Mr Chauke had indicated.

The Chairperson interjected and asked Mr Wallis to qualify that the grant was not necessarily for individual housing. She asked him to explain about individual housing versus shelters, especially those run by NGOs.

Mr Wallis said that the purpose of the policy was for an NPO, that would provide care to people with special needs, to be able to access a subsidy to either buy an existing house or a facility, or receive the subsidy to own that house. So, the subsidy would go to the NPO which had to be registered. Alternatively, it could be a new development. That NPO could apply for a subsidy on a particular stand, receive tenure and then, with the necessary support from either the Department of Social Development or Health, get the type of assistance required to provide care to people with special needs.

He said that that was a different policy to the one the Department had for the disabled. The one for the disabled was a funding mechanism on any individual subsidy where the beneficiary would receive additional funding to provide particular facilities in a house to suit their specific needs. The second one was a funding mechanism, for instance, to an NPO who would provide care to people with special needs who could not live on their own. That was really the difference. In that case, people needed an organisation to liaise with the Department of Social Development or the Department of Health to get a particular subsidy from them for the operational costs. That would be a loose standing unit within an existing town.

 

Mr Wallis said that the issue of the co-ordination desk had to be thought through very carefully with the sister departments. The DHS could provide the capital subsidy for the house, the stand and the infrastructure that serviced that house, but who would identify the NPO that had a need to set up a facility? He agreed with the SAHRC that there had to be a mechanism. That had to be thought about very carefully. He believed that the policy currently did provide guidance for the institutional arrangements.

The Chairperson hoped that the Department was picking up the issues that Members were raising so that the Department would present an improved version of the policy document at the workshop in the new year.

Ms Ramkissoon said that she just wanted to clear up what seemed to be a misconception. The role of the Department of Human Settlements was in infrastructure in that particular policy. It was responsible for the capital funding and the infrastructure. The Commission was aware that the Department did not have the capacity or the skills to run a special needs facility. Be it a health facility, a social development facility or a correctional facility, the Department did not have the skills or the capacity to do so.

 

That was why the Commission was so concerned about co-ordination because, when departments had to work together, there was often a breakdown in communication, hence a co-ordination desk was essential. The SAHRC felt that the Department of Human Settlements should be in charge of coordination. The reason was that DHS had promulgated the policy in the first place, and should take the first steps in the development of implementation, plans and so forth. DHS should not be in charge of operational costs.

Commissioner Malatji noted that he usually relied on civil society, such as the disabled peoples’ organisations, that were dealing with the people on the ground, to bring the complaints to the SAHRC.  There were many of those organisations and they often came to him for advice as to how to advise and assist their clients.  He also had an Older Persons Committee and there were a number of older persons’ organisations on that Committee.  He received numerous complaints from older persons with regard to their housing situation.  He had just wanted to make the point that he probably had a different perspective as he was constantly involved with the problems at ground level. 

The Chairperson thanked everyone, noting that the meeting could not have taken place at a more appropriate time.  It had been a very important debate at the time of World’s Aid Day and 16 days of activism, and, of course, Human Rights Day was every day.  She thanked the Commission for sensitising them to the issues of vulnerable people who were sometimes put at the back of the mind and forgotten about.  Sometimes as Human Settlement, the Committee would think that those issues belonged to Social Development and the Department of Health, but Human Settlement also had a big role to play. She informed the SAHRC that they would be invited to give input at the workshop.  The Committee would monitor the policy. Special needs housing would be standard question, just like the one on informal settlements, on the programme. She told Mr Wallis to ensure that the matter was addressed in every Quarterly Report.

Committee business

The Chairperson informed the Committee that members needed to adopt the Committee’s Second Quarterly Report, July to September 2017.  The most important thing in the report was page 11 which dealt with the recommendations: the issue of the beneficiaries, the issue of the mining towns and mining companies, and the issue of the plan to present the under-performing metropolitan municipalities.

 

The Report was adopted by the Committee.

 

The Chairperson stated that the Members would see each other in the new year, after bruises from various quarters, but in one piece.  She had, therefore, decided that the Committee would be having a proper lunch that day.  She hoped that everybody would enjoy the break ahead.

 

 

 

The meeting was adjourned.