Meeting with the South African Human Rights Commission

Meeting report

Briefing by South African Human Rights Commission
Ms Prekashnee Govender, Deputy Chairperson of the South African Human Rights Commission (SAHRC) said that the Lonmin Marikana tragedy has brought a very urgent focus on human rights in this country. It was important that the institutions in this country had to work together in order to ensure that constitutional rights became a reality. The theme for this year has been the right to water and sanitation. Institutional powers and mandates had to be used as effectively as possible, one could not just focus on one right and neglect others, for example one could not look at socio-economic rights without looking at civil and political rights as well.

Commissioner James Titus from the SAHRC added that SA did not look good in the eyes of the international community insofar as its international obligations were concerned. The SAHRC had a meeting with the Secretary General from the presidency as well as senior officials in the Department of Cooperation and International Relations (DIRCO) as well as the Department of Justice and Constitutional Development (DoJ&CD). The purpose of the meeting was to discuss international obligations as well as cooperation with the SAHRC. The Commission has enlisted the services of the Legal Resources Centre (LRC) to assist the Commission in its own investigation into the Marikana massacre.  The Commission was approached via a complaint against Police Commissioner Riya Phiyega. The Commission has been requested to focus on the conduct of the police, the shootings and incidents of torture. There was a need for an independent and credible investigation. There was also a need to investigate Lonmin in terms of its practices, its treatment of workers and their living conditions. The SAHRC also wanted to know to what extent this was also a problem at other mines. Lastly the LRC would assist in helping the SAHRC at looking into the Marikana municipality and the local environment. The Commission was looking forward into launching a sensible investigation that would lead to producing sound information that could be put before the Farlam Commission of Inquiry.   
 
Presentation: South African Human Rights Commission: Meeting with the Justice Portfolio Committee on the Finance Proposal
Mr Kayum Ahmed, Chief Executive Officer (CEO) of the SAHRC said that the Commission has just finished its 2012 report and there it was mentioned that some government departments had failed to cooperate with the Commission. The Commission planned to make use of its power to subpoena in order to ensure that government departments comply with requests for information. The Commission would also like to receive information from the Committee on the impending changes relating to the the Information Regulator that was envisaged in the Protection of Personal Information Bill (PPI) and the impact that this would have on the Commission. It was known that the Regulator would receive around R17 million for its responsibilities on the Promotion of Access to Information Act (PAIA). In the Committee’s report on its Budget Vote it was stated that the Commission failed to motivate properly for additional funding, this was why the Commission has put this funding proposal together. The funding proposal went beyond the conventional by also highlighting attempts that have been made to reduce expenses. One of the ideas that have been pursued was that in order to reduce costs, there had to be mutual cooperation with other Chapter 9 Institutions given that Treasury was looking at cutting budgets. Treasury had cut the SAHRC’s budget by 1%, 2% and 3% over the next three financial year’s was a piecemeal approach that was wrong. The money that was to be saved from reduced expenses was going to be redirected towards legal services. The challenge with budget cuts from Treasury was that they were linked to the SAHRC’s performance. There has been a significant jump in performance over the last three years from 52% to 89%. For spending to be cut at this point would be disastrous for the Commission.

The SAHRC was not just asking for more money, it was also proposing that the 10% of its budget that was spent on rental costs was exorbitant, in order to reduce this a proposal was put to Treasury for a precinct to be built  that allowed office space to be shared amongst the  Chapter 9 institutions.   If the Chapter 9 Institutions moved to a single precinct the SAHRC would save far more than the R12 million that would be saved via Treasury’s budget cuts. A proper feasibility study would be required, Treasury has tentatively agreed to offer support and now the Department of Public Works (DPW would have to come on board. Enhancing the role of Commissioners was important. The conditions of employment of Commissioners could be agreed upon before the SAHRC Act was amended; this was something that the Committee could look at.

Discussion
Mr J Jeffery (ANC) said that the Committee supported the streamlining of Chapter 9 Institutions. The SAHRC would be losing its responsibilities in terms of PAIA to the Information Regulator. It would take some time for the Regulator to be set up despite the SAHRC reducing its funding on this. There was not much information on why targets were not reached by the SAHRC. On the issue of Marikana, it was not clear why the SAHRC was involved in the manner it has set out when there was a commission of inquiry that has been established by the president.   The more statements that were taken from witnesses the more conflicting the evidence would be. The Commission’s involvement in a fact finding mission to Marikana was quite baffling given the commission of inquiry that has been set up, this was a waste of recourses. Last week was the first time that it emerged that the Torture Bill was overdue; the SAHRC knew of this but did not pass it on to the Committee. The only communication from the SAHRC was on the International Convention for Socio-economic rights.  Which treaties that fell under justice were running into problems? Similarly if the Commission was dealing with water and sanitation issues, such information had to be given to the relevant Portfolio Committee. Was there any interaction with Legal Aid South Africa (LASA) to use funding that was set aside for litigation in test cases?

Ms M Smuts (DA) said that Mr Jeffery was wrong, the Commission has reported to the Committee on the status of international treaties.  It was a relief that Commissioner Titus has said that the Commission’s findings into Marikana would be put before the Farlum Commission of Inquiry. Which rights were the Commission looking into?  What was the basis of the Commission’s inquiry into the mining companies? In terms of the proposal to amalgamate with other Chapter 9 Institutions, form must follow function, at some stage a decision would have to be taken whether to activate the proposal in the Chapter 9 review to bring under one umbrella the rights based Institutions as these should flow together. The Commission had to go ahead with subpoenas.

Mr S Swart (ACDP) said that the use of subpoenas was a good idea, should the Committee not get a list of departments that were not cooperating. What was the relationship between the Committee and the Office of Institutions Supporting Democracy (OISD), it clearly seemed like this unit was not supporting the SAHRC. The SAHRC has raised the issue of non-compliance with treaties before. On the issue of Marikana Mr Jeffery and Ms Smuts were both right. Firstly should the SAHRC be doing the work of the Farlam Commission and at what cost was this investigation going to be done, was the LRC going to charge legal fees? What about the other areas such as labour rights, the allegations of witchcraft were there complaints on these issues? There were ongoing service delivery protests as well as unrest at mines in South Africa (SA), to what degree could the SAHRC act proactively? There seemed to be an increase in volatility in society and what role could the SAHRC?

Ms S Sithole (ANC) said that the SAHRC accounted to the Justice Portfolio Committee. There had to be quarterly reporting from the SAHRC and these should be made available to the Committee on time. It was a good thing that the SAHRC was pursuing an amalgamation with other Chapter 9 Institutions. Commissioner Titus’ comments were worrying because there was no mention of the rights of the first 10 people who died at Marikana. The media did not cover this aspect very extensively and seemed to be selective in their reporting as it was common in this country. The rights of everybody had to be protected such as the police, the other 10 who died as well as the miners.

Ms C Pilane-Makaje (ANC) said that working with other Chapter 9 Institutions was a good idea, what happened to the idea of using constitutional hill? The issue of conditions of service for Commissioners has been ongoing for many years. The participation of the SAHRC into Marikana was a concern given that there was already a Commission of Inquiry. Has the Commission been engaging with the Farlam Commission? The everyday human rights abuses that happen in this country is where the SAHRC should be visible.

Professor G Ndabandaba (ANC) asked how many offices were in other parts of the country and what was the situation there.

Ms D Schäfer (DA) said that for over a year there have been requests to meet with OISD and this has not happened, this institution did not seem to be assisting any of the Chapter 9 Institutions. It seemed like OISD was a cash cow in the Deputy Speaker’s Office where people were earning money for doing nothing. The Committee had to now take a decision to look further into this.

Advocate P Holomisa (ANC) said that OISD had to be around whenever there was a Chapter 9 Institution that was present. How did the other Chapter 9 Institutions feel about sharing space and resources?   How far was the DoJ&CD in amendments for the SAHRC Act?

The Chairperson said that there was a need to engage further with the Commission. Quarterly engagements also meant receiving reports and not necessarily having meetings since the Committee was inundated with legislation. Which departments have refused to cooperate with the Commission? There was agreement on the issue of Treasuries budget cuts. It was true that sharing resources or even buying property was a better cost saving exercise. The Marikana situation was worrying because one had the police, the National Prosecuting Authority (NPA), the Independent Police Investigative Directive (IPID) and a plethora of people going there to investigate. The worry was that they were going to trip over each other. Would the SAHRC ensure that it did not trip over others in its investigation? Crime scenes at Marikana seemed to not have been secured. If crimes scenes were not secured what was the SAHRC going to find? Ms Sithole was right, in the run up to the 34 that were killed, 10 had died in a gruesome manner and they have been forgotten. Some of those who died were exercising their right to not strike. If the SAHRC was conducting its own investigation like others did it also include those that died simply because they did not want tot participate in the strike and demonstrations?

Ms Govender said that the departments that did not comply were Water Affairs, Basic Education, Rural Development, Agriculture and Health. The departments of Human Settlements, Social Development and Environment actually responded. Parliament would have to now discuss the concept of amalgamated Chapter 9 Institutions. The Benchmarks Foundation Report had specific recommendations on what the SAHRC had to investigate in relation to mining and affected communities. The report was launched shortly before the Marikana massacre. The Commission has been having provincial public hearings on the impact of mining on water and sanitation.

Ms Smuts asked for the date when the Benchmarks Foundation Report was launched.

Ms Govender said that it was a few weeks ago and the information would be made available to the Committee. The Benchmarks report was on communities in the platinum mine fields.

Mr Jeffery asked where the report was available.

Ms Govender said that there should be a link on the Commissions website but it would be forwarded to the Committee.

Ms Janet Love, Commissioner from the SAHRC said that the purpose of the SAHRC’s investigation was to put before the Commission of Inquiry a range of contextual issues that have played a role in building up tension and creating problems in the Marikana area. An example of the afore-mentioned was that the claims from mining companies of employing locals was distorted because many of the people staying in communities were shack dwellers who did not have their roots in such areas. The Commission of Inquiry has not had the benefit of a full understanding from community members of its role and how they could interact with it at this stage. One of the issue that was due to come before the Commission of Inquiry from the community was the pollution of the water by the mines. There were water born diseases that have started appearing.

Commissioner Titus added that the Commission had to make a human rights based contribution on the Marikana issue, it was not clear what this would be at this stage.  This contribution would be submitted to the Farlam Commission. As an outcome the right to protest balanced with the right to have such protests policed has to be achieved. The Farlum Commission would take the final decision. The SAHRC did not think that this was a waste of funds or a duplicate inquiry as it was from a human rights perspective  that the investigation would be conducted. The SAHRC would bring different aspects to the Commission of Inquiry especially since there was a group in Cape Town that has already rejected the credibility of the Commission of Inquiry.

The Committee asked where this came from.

Commissioner Titus said that this was in the media about two days ago. There was unrest in the communities and there was a need for a credible investigation. The SAHRC was working with IPID which has been mandated to investigate allegations of torture.

Commissioner Love said that the LRC was approached by the Commission as has been the case previously because of a lack of an adequate litigation budget; this was to be on a pro bono basis.

Ms Smuts said that the Commission and the LRC was going to present findings and concerns to Farlam so the LRC was not going to be acting as lawyers.

Commissioner Love said that giving advice and drawing up documents took time but there would be no costs.

Mr Jeffery asked if the LRC was not also representing some of the families for the deceased.

Commissioner Love said that the LRC has had requests from a couple of the family members for assistance in relation to death an injury, this was separate as it involved doing independent autopsies and forensic.

Mr Jeffery said that there was a Commission of Inquiry where people with an interest could make representations. It was evident that the SAHRC was planning to monitor and outline broader issues as opposed to investigating and taking statements.  Was it not a conflict of interest to have the LRC representing the Commission and the families of the deceased?

Commissioner Love said that the lawyers who were dealing with the families did not feel that there was a conflict of interest. Over time it would emerge what exactly happened during the course of information being pulled together. As the Committee could imagine statements from family members that the LRC was representing have already been taken and this might lead to other statements being taken  which may well refer to people’s views on what happened. The Committee could rest assured that there would not be numerous statements taken.

Mr Jeffery said that the SAHRC was a Chapter 9 body it was not an NGO, the lawyers from the LRC representing some of the families may not think that there was a conflict of interest but Parliament was of the view that there was because the SAHRC should be seen to be independent and have a bird’s eye view of things.

Adv Holomisa said that he was equally perplexed at the manner and timing of the SAHRC’s involvement in the Marikana matter; the terms of reference for the Farlam Commission were not even out yet. One of the reasons that the NPA decided to withdraw charges was because of the establishment of the Farlam Commission that was set to investigate everything. Has the SAHRC made its intentions clear to the Farlam Commission of Inquiry?

Ms Smuts said that the Farlum Commission was there to investigate, now if the SAHRC was going into socio-economic rights then that was fine, it was the other stuff that were worrisome. The SAHRC was mudding the waters.

Commissioner Titus said that the Commission was going to take to the Judicial Commission of Inquiry any findings that it would make on the Marikana issue. The LRC was requested to assist in the same manner as other organisations have been requested. It was still the Commission that would make a presentation to the Farlam Commission.

Mr Jeffery said that one could work with other organisations but the question was whether they had an interest or not? There was an enormous problem, the LRC did good work and it was good that they were representing the families but it’s just that the SAHRC was a Chapter 9 Institution and part of the Constitution it could not use the same lawyers as an interested party.

Ms Smuts said that the other difficulty was the forensic work; perhaps the Commission should drop this.

Commissioner Titus said that the Commission would take cognisance of the views of the Committee. The Commission would contact the Farlam Commission to alert it of its intentions.

Ms Pilane-Makaje said that the statement that the Commission was yet to approach the Farlum Commission was worrying, if the Commission was independent it was still Parliament’s job to ensure that it performed proper oversight.

Ms Schäfer asked on what basis were some people not happy with the Farlam Commission and would this not undermine its work if people started trusting the SAHRC more and disclosing information to it.

Commissioner Love said that she was not aware of anybody not being happy with the Farlam Commission other than what was speculated upon in the newspapers. The Committee could be assured that the Commission could engage with the Farlam Commission. The Commission would not find it negative to present independent forensic and autopsy reports to the Farlam Commission. One could not do autopsies twice; the Commission could not lose sight of the forensic evidence that has been collected. It would be important to present independent autopsy findings to the Farlam Commission without necessarily impeding it. In terms of the independence of the Commission this would not be a problem because it would not play an adjudicative role where it would seek to blame this or that party. The Commission would seek to present factual information and put it before the Farlam Commission.

Mr Jeffery said that he did not think that the SAHRC should involved in autopsies. It was common practice that there was one autopsy with a number of pathologists present that compile different reports. Why was the SAHRC involved in the afore-mentioned aspect of things, it was clear that the reason was that it was using the same set of lawyers that have said that they were representing the families of the affected parties as well as the SAHRC and then talking about pathologists. Its a perception problem.

Mr Swart said that assume that the SAHRC wanted information from the police, they would turn around and say that the LRC was potentially acting against us in a civil or criminal matter, was this not a possibility?

Commissioner Titus said that justice must not just be done but be seen to be done as well and the Commission would take the Committee’s views seriously.

Ms Govender said that the Commission would address the rest of the issues and questions.

Ms Lindiwe Mokate, Commissioner at the SAHRC said that there was a lot of work that had to be done for children. It was hoped that SA would honour its international obligations in terms of reporting on this matter. It was also hoped that SA would do something on the operational protocol on the rights of the child. The SAHRC has developed a charter on the right to basic education. The purpose of the charter was to outline everybody’s role in this sector. The document was based on what SA has committed itself but not realising. The charter would be launched in a month or less. The Eastern Cape (EC) has been the worst province in this area.

Ms Pilane-Makaje said that her concern was that whatever work the SAHRC did would be rendered futile if SA did not comply with its international obligations. What was the SAHRC doing to resolve this?

The Chairperson asked who was the lead department on the Convention of the Rights of Children (CCRC).

Ms Mokate said that the lead department was the Department for Women, Children and People with Disabilities. The SAHRC has reported this matter to the Committee as well as the relevant departments such as the Presidency, Doj&CD as well as the Department for Women, Children and People with Disabilities.

Ms Schäfer said that it was a concern that all that’s been done was the development of a charter on the right to basic education, it was well known what had to be done. What has the SAHRC done ti address the imminent problem where it was September 2012 and children still did not have textbooks to learn from?

Adv Holomisa said that he heard the compliant that departments were not cooperating at every meeting with the SAHRC. Have the departments s that cooperated done so because they were subpoenaed? Why have subpoenas not been issued against problematic departments?

Ms Mokate said that the Commission has been using subpoenas since 2001 and has done so on many occasions. Government departments still did not comply. The charter went way beyond textbooks, it was important because it could be used by the SAHRC and others because it was a legally grounded document. The SAHRC has called the Minister of Basic Education to account and provide a detailed explanation on what has happened and what the Minister planned to do about this. The SAHRC has also visited the affected areas and compiled reports across the country.

Ms Sithole said that the SAHRC has tools contained in the Constitution and it was good that they were finally being used.

Adv Holomisa said that if there was a power to issue a subpoena there had to be consequences if such subpoenas were not complied with. There was the Ministry for Performance and Evaluation, has the SAHRC been working closely with it?

Commissioner Love said that the SAHRC has talked to the Presidency via the Ministry for Performance and Evaluation. The SAHRC has also raised issues with the Committee to try and hold the Executive to account. The report on children was just one of the reports that were overdue; the report to the committee of the counsel was twelve years overdue. The SAHRC could only once again request the Committee for assistance to bring the Executive to account. It was not just via the courts that the country should be run. 

Ms Schäfer said that the standards have been set by the NPA who themselves do not comply with court orders; this was a symptomatic problem in SA where accountability was concerned. Was the SAHRC going to compile a report on the issue of textbooks and if so what was the time frame for this? Has the Department of Basic Education been subpoenaed as well?

Ms L Adams (COPE) asked what the SAHRC’s specific role was in the closure of schools in the Western Cape (WC).

Ms Mokate said that the SAHRC did have a report on the work done on textbooks and this would be forwarded to the Committee. The Department of Basic Education has not been subpoenaed yet, but it was coming.

Ms Melanie Dougmore, Provincial Manager at the WC branch of the SAHRC said that the Commission received four complaints on the closure of schools so it was obliged to investigate the matter. The SAHRC would assess the complaints on the basis of either denial of the right to basic education or unjust administrative action.

Ms Govender said that the meeting highlighted the need for further engagement.

Mr Ahmed added that he has been in touch with all of the CEO’s from the other Chapter 9 Institutions and they had agreed to the proposal on the sharing of resources and work space. The Chapter 9 Institutions were driving the process and not DoJ&CD. Next week there would be a meeting with the DoJ&CD, National Treasury as well as the Department of Public Works (DPW). Some of the reasons why the Commission has not reached its targets related to the restructuring process and more detail would be provided when the annual report was tabled. The suggestion to provide quarterly and timeous reports was an excellent idea. The Director General at DIRCO as well as the Department of Monitoring, Performance and Evaluation and they have presented a report that highlighted all of the outstanding international agreements that have not been ratified. The SAHRC was going through the report and there were lots of challenges. The DoJ&CD also presented their report.

Ms Govender said that the Committee has reiterated its commitment to taking seriously the Commission’s reports to it and ensuring that it uses them to perform better oversight over the executive. The SAHRC had to see a plan of action from the Committee’s side. The SAHRC had to look to developing the education charter as well as tackling the textbook crisis. The SAHRC was also yet to hear from the Committee on whether there would be go ahead to host a dialogue on the Parliamentary precincts. The SAHRC has communicated with the Ministry for Performance and Evaluation and they were invited to attend the provincial hearings on water and sanitation.

The Chairperson thanked the SAHRC and adjourned the meeting.

Meeting Adjourned.