South African Human Rights Commission Bill [B5-2013]: briefing by Department of Justice and Constitutional Development

Meeting report

The Chairperson welcomed all present and explained that upon the Committee’s call for submissions on the Bill, only the Commission for Gender Equality (Gender Commission) had sent written submissions to the Committee and it had indicated that it would not be making any oral submissions. Thus, in its consideration of the Bill, it was pertinent for the Committee to put into perspective the concerns highlighted by the Gender Commission in its written submission. The Chairperson invited the Department’s representatives to commence the presentation.

Mr Johan Labuschagne, Principal State Law Adviser, commenced the presentation with a brief background on amendments so far effected on the Bill from previous engagement with the Committee.  A detailed exposition on the proposed amendments to each section of the Bill was discussed (see document). Worthy of note were the following proposed amendments to the Bill:

Preamble

Mr Labuschagne informed Members that the preamble to the Bill had been amended to reflect the wording of Section 2 of the Constitution, which details the powers and functions of the Commission.

Mr J Jeffery (ANC) questioned what the point of the amended preamble was and noted that it did nothing other than state what was already in the Constitution and was unnecessary.

Ms M Smuts (DA) asked what the convention was with other legislation.

Mr Labuschagne responded that while he agreed with Mr Jeffery’s suggestions, the preamble as stated in the Bill went further.  It served the purpose of indicating the reason for the Bill. Members were welcome to give guidance on the preferred structuring of the pattern of the preamble.

Mr Jeffery suggested the preamble be shortened and cross-referenced with the Constitution.

Mr S Holomisa (ANC) expressed his preference for simplicity in drafting legislation and noted that it was preferable that the preamble reflected the original text, rather than cross-referencing to the Constitution. It was necessary, however, to observe consistency with the drafting styles used in previous legislation and to shorten the length of the draft preamble, as proposed by Mr Jeffery.

Clause 1

Mr Labuschagne drew Members’ attention to the additional draft definitions added to Clause One and the adjusted definition, from ‘fundamental human rights’ to ‘human rights’.

Mr Jeffery remarked that the term ‘fundamental human rights’ was narrower in scope than ‘human rights’, and questioned the addition of the phrase ‘….and relevant international and regional human rights instruments’ to the definition of human rights. What was considered relevant and what was the position where such instruments had not been ratified by Parliament?

Ms Smuts questioned whether there were any specific provisions in the Bill under which ‘relevant international and regional human rights instruments’ would apply.

Mr Holomisa suggested the use of ‘applicable’ to replace the word ‘relevant’.

Ms C Pilane-Majake (ANC) remarked that it was necessary to make provision for the recognition of instruments, and even to include sub-regional instruments. However, as suggested by Mr Holomisa, the word ‘relevant’ should be substituted with ‘applicable’.

Mr Jeffery noted that a change of the term ‘relevant’ to ‘applicable’ may not necessarily solve the issues under review; human rights should be defined as provided for in Chapter Two of the Constitution and not left to international instruments.

Mr Labuschagne responded that in the drafting of the Bill, provisions of legislation of other Chapter Nine institutions had been considered hence the insertion of the phrase ‘relevant international and regional human rights instruments’ in the definition of human rights.

Mr Jeffery suggested that an adequate definition for ‘organs of state’ had been provided by Section 239 of the Constitution.  What was the purpose of extending the definition?

Mr Jeffery questioned why ‘road’ had been included in the definition of ‘premises’.

Mr S Swart (ACDP) recommended that standard provisions in search and seizures should be employed in the definition of premises.

Mr Jeffery proposed that the word ‘road’ be deleted from the definition of premises after consideration of the definition in other Chapter Nine institutions.

Clause 2

Mr Labuschagne informed Members that the objects of the Commission had been inserted into the Bill, as reflected in the Constitution.  It was deemed necessary to insert the provisions of the Constitution, rather than merely cross-reference.

Ms Pilane-Majake said she agreed with Mr Labuschagne on the need to insert the objects in the Bill and noted that Clause 2 (c) of the Bill ought to reflect components of compliance monitoring, as this was also a part of the Commission’s objects.

Mr Holomisa remarked that it was necessary to empower the Commission against defaulters when they failed to comply.

Mr Jeffery, disagreeing with Ms Pilane-Majake’s suggestion, responded that the objects clause provided a broader picture of what the Commission was established to do, and it was appropriately drafted in the Bill as it was.  Additional details should be categorized under the functions and powers of the Commission.

The Chairperson noted that if this proposal by Mr Jeffery was adopted, there was a need to properly scrutinize the clauses on powers and functions of the Commission.

Ms Smuts also disagreed with Ms Pilane-Majake.   She was opposed to the inclusion of a compliance component in the Bill. Chapter Nine institutions - of which the Commission was one - were not courts of law or tribunals.  Their opinions were not enforceable, and the strength of their opinions rested only on moral persuasion. The enforcement of human rights had been, and should continue to be, given effect via courts of law.  Chapter Nine institutions should not be turned to tribunals which made findings and adjudicated on those findings.

Ms Pilane-Majake responded that monitoring compliance should be a core objective of the Commission, and the objectives as they were did not effectively articulate this.

Mr Holomisa agreed with Ms Pilane-Majake.  He said there was no point in monitoring if compliance could not be ensured.

Ms Smuts reiterated the need to ensure that Chapter Nine institutions were not empowered as tribunals, as was clearly the case in the Constitution.

Mr Jeffery added that the Commission and other Chapter Nine institutions served as ‘watch-dogs’ to ensure that the rights of people were not violated. If these institutions were empowered to hand down penalties, then it would become necessary to ensure compliance with due processes. The purpose of the Commission’s findings was to alert the public to any breaches.  Its findings were not enforceable. It was necessary to clarify the Commission’s functions in this regard, taking into account the dangers of empowering Chapter Nine institutions to penalise defaulters.

Mr J Sibanyoni (ANC) agreed with the analogy on Chapter Nine institutions being watch dogs.  However, there should be mechanisms in place to help these institutions ensure compliance and non-violation.

Ms S Sithole (ANC) said she supported Ms Smuts’s position on the issue.  The office of the Auditor-General was a classic example, as the AG was taking serious action across the whole spectrum of the government and private sector. The AG made findings, and reported to Parliament on the findings for further action.  The office of the AG was also a Chapter Nine institution.

Ms D Schӓfer (DA) noted that it was necessary to take into consideration the position of the Constitution on Chapter Nine institutions, as this could not be changed via legislation.

Mr Swart said the Commission was clearly not a tribunal as expressed through the provisions on Clause 14 (9) of the Bill, therefore the Commission could not enforce by itself its own recommendations.

Mr Holomisa agreed that the provisions of Clause 14 (9) resolved the debate.

The Chairperson advised that Clause 2 would remain as it was.

Clause 3

Mr Labuschagne drew Members’ attention to the provisions of Clause 3 of the Bill on the seat of the Commission.

Ms Smuts remarked that it may not be necessary to provide that the seat of the Commission be determined by the President, as the seat had already been determined.

The Chairperson disagreed, stating that there was always a possibility the seat of the Commission could be moved, and the President still needed to determine this.

Mr Jeffery suggested another entity be charged with the responsibility of determining the seat of the Commission, such as Parliament or the National Assembly.

Mr Holomisa questioned why ‘duties’ had been deleted from Clause 3 (2) of the Bill.

The Chairperson replied that Mr Labuschagne had explained that the functions of the Commission had been listed in Clause 14 of the Bill and it was believed that the functions had encompassed duties, hence the deletion.

Mr Jeffery also pointed out that the Constitution provided only for functions, and not duties.

Mr Mongameli Kweta, State Law Adviser, responded that in the process of drafting it was felt that functions also included duties and thus did not take anything away, if excluded.

Clause 4

Mr Labuschagne drew Members’ attention to the provisions of Clause 4 of the Bill, particularly a new insertion to the draft.

Mr Jeffery said there was no point in including the provisions of Clause 4(1) (a) in the Bill, as this was already clearly entrenched in the Constitution.

Mr Kweta responded that while the point was taken, all were subject to the provisions of the Constitution and including the provision in the Bill did not diminish this.

The Chairperson advised that the provision should be deleted.

Mr Jeffery referred to Clause 4 (2), and the recommendation in the written submission of the Gender Commission that the clause was ineffective without the Commission having powers of penalty against defaulters. It was the preferred option for the courts to determine offences and impose penalties; the option of reporting to the National Assembly could also be considered.

Ms Schӓfer noted that there was an offence and penalty clause in the Bill, and the concerns of the Gender Commission would be addressed under this clause.

Ms Smuts added that government departments had a constitutional duty to report to the Commission, and the Commission had the power of subpoena which it could exercise as a measure to ensure compliance on reporting.  It was a misconstruction of the purpose of Chapter Nine institutions to grant powers of penalties to these institutions. Some issues should not become matters of litigation and penalisation and ought to be sorted out through political negotiation.

Ms Pilane-Majake remarked that the monitoring of compliance without enforcing sanctions was a waste of resources.

Ms Schӓfer said that Clause 23 (h) and (i) made the contravention of Clause 4 (3) and (4) offences.

Mr Jeffery remarked that if Chapter Nine institutions were able to penalise, then correct processes had to be followed, including appeal mechanisms. Currently no appeal mechanisms existed, arising from the findings of Chapter Nine institutions, because they were not considered to be tribunals.

The Chairperson referred to the example cited earlier by Ms Sithole, and noted that the AG had no power of imposing penalties but was very effective in the execution of his duties.

Ms Sithole added that Chapter Nine institutions ought to make findings and table reports of the findings to the Committees of Parliament to which they reported.  Based on these reports, Committees should in turn take action through Parliament. The reports of the AG were fact-based, objective, and showed the steps already taken to remedy the situation.  This was the pattern other Chapter Nine institutions ought to emulate.

Clause 5

Mr Labuschagne drew Members’ attention to Clause Five of the Bill on the composition of the Commission.

Mr Jeffery remarked that in previous engagements on the Bill, the Committee had debated extensively over the ideal number of Commissioners. It was useful to consider international trends, while taking into consideration the cost implications of increasing the number of Commissioners, particularly in the light of the Commission’s financial constraints.

Ms Smuts stated that she was opposed to the proposal that there be 11 Commissioners, and was in favour of the proposal for seven Commissioners - five full-time, and two part-time.

Ms Pilane-Majake also stated her support for the proposal of seven Commissioners for the Commission. For the sake of uniformity and conformity, it was advisable to engage with other Chapter Nine institutions on this issue.

Mr Jeffery requested the Commission to provide the Committee with statistics giving a comparison with other human rights commissions internationally. It would be helpful to have feedback from the Commission with regard to the number of Commissioners it needed.

Ms Schӓfer noted with concern that the office of the Public Protector had only one Commissioner despite its workload, and yet managed to deliver effectively on its mandate. Why did the Commission need to increase the existing number of its Commissioners?

Mr Jeffery said the challenges surrounding the relationship between the Commissioners and the CEO of the Commission needed to be sorted out.  In response to Ms Schӓfer, he said the Commission was different from the office of the Public Protector - the scope of the Commission’s mandate was far broader and cut across various aspects of human rights, whereas the Office of the Public protector had a specific mandate.

Ms Smuts responded that the work of the Public Protector was technical and specific, and by its very nature was contracted out to independent investigators.  The Commission’s work was different, hence the need for specialised Commissioners dedicated to clusters of rights. Each cluster of rights encompassed huge fields and therefore the comparison between the Public Protector and the Commission had little use.

Ms Smuts proposed the inclusion of a disqualification clause under Clause 5(1) of the Bill on members of the Commission.

The Chairperson reiterated the proposal for seven Commissioners- five full-time and two part-time.

Mr Jeffery said that in his opinion the provision of Clause 5 (2) (b) was inappropriate and should be deleted.  Parliament decided the terms of office of each Commissioner and the expiration of the terms. It was inconsequential whether terms expired simultaneously - even if the terms of office were staggered, it was within the rights of the Commissioners to resign all at the same time as had happened in the SABC Board scenario.  All that was required to rectify the situation was to appoint new Commissioners.

Ms Smuts proposed that the phrase ‘on the recommendation of the National Assembly’ be added to Clause 5 (1) (d) to ensure that the appointment of members of the Commission by the President was carried out in conjunction with the National Assembly.

Ms L Adams (COPE), referring to Clause 5 (2) (b) noted that for purpose of continuity, it was necessary to consider other alternatives in a situation where the terms of office of all members expired or all members of the Commission resigned simultaneously.

Mr Jeffery proposed the deletion of Clause 5 (5), (6) and (7) on the basis that acting members should not be appointed to the Commission.

The Chairperson said that the Gender Commission’s proposal for different terms of office for members of the Commission had been considered and rejected.

Mr Jeffery noted that the three months’ notice required under Clause 5 (8) (a) of the Bill was impractical.

Mr Jeffery referred to Clause 5 (8) (b) (iii), and proposed that the clause be deleted, as office bearers could not be appointed.  This should also qualify as one of the items in the restriction/disqualification clause proposed by Ms Smuts.

Mr Labuschagne explained to Members that the provisions of Clause 5 (8) (c) was inserted due to previous experiences encountered by another Chapter Nine institution.

Ms Pilane-Majake proposed that the method for lodging resignations be clearly articulated in the Bill.

Mr Jeffery agreed with Ms Pilane-Majake, and remarked that this was a thorny issue.  The State Law Advisers had stated that resignations were to be addressed to the party who had made the appointments. The problem was the delay in communication between the Office of the President and Parliament.  Although Parliament was usually aware of these resignations, no formal procedures for the appointment of new members could be started until there was official communication from the Minister.

Ms Schӓfer proposed that resignations be addressed to the President as the appointer, but also tabled formally via a letter at the National Assembly.

Members indicated support for Ms Schӓfer’s proposal.

Clause 5 (10)(b) ‘The President may suspend a member from office –

(b) on such terms and conditions as the President may determine, including the suspension of the payment of his or her remuneration or the suspension of any other term or condition of his or her employment.’

Mr Jeffrey said that the power granted to the President by this provision was inappropriate and that this power should be entrusted to Parliament. He proposed deletion of the provision.

Ms Smuts said the inclusion of the power of suspension in the Constitution was regrettable, because it could be used punitively.  She gave an example of the telecom sector, where people had been threatened with removal. 

Clause 5 (10) (b) was deleted by the Committee.

Chairperson and Deputy Chairperson of Commission

Clause 6 (1) ‘The President must designate two of the full-time members as Chairperson and Deputy Chairperson of the Commission, respectively, who must be fit and proper persons to hold office as Chairperson and Deputy Chairperson.’

Ms Smuts said that in choosing the chairperson of the Commission, two options were preferred.  One was that the body itself should choose the chairperson, the other being designation by the National Assembly. The President should not be given the power to designate.

Ms Pilane-Majake said that the commissioners should choose their own chairperson and deputy chairperson, adding that this would promote cooperation as opposed to a chairperson imposed on it.

Mr Jeffrey proposed that three options should be considered: where the President designated; where the commissioners elected a chairperson from among themselves; and where the National Assembly made recommendations to the President. The researchers were asked to look at the work of Ms Judith Cohen (International and Legal Specialist – South African Human Rights Commission) on how chairpersons were selected in commissions.

Mr Johan Labuschagne, Principal State Law Adviser, asked if the President would be bound by the recommendations from the National Assembly.

The Chairperson responded that the President would be bound by the recommendation of the National Assembly and that he would have no discretion regarding the appointments. In case of a problem with the recommendations, the President would have to refer the matter back to the National Assembly.

Powers and functions of Chairperson, Deputy Chairperson and other members

Clause 7 (2) ‘The Deputy Chairperson and any other member are vested with all the powers and functions conferred on or assigned to him or her by the Commission or the Chairperson.’

Mr Jeffrey said that the chairperson could not confer power on any other person, but rather delegate - conferring power created the potential for trouble. This provision had to be reworked. Parliament wanted a chairperson of the Commission, not a ‘super chairperson.’

Ms Pilane-Majake said that there should be an allocation of some of the powers and functions of the chairperson to the deputy chairperson, with a clear articulation of what the responsibilities of the two persons were, otherwise one would end up having a ‘lonely’ deputy chairperson. 

Ms Smuts asked for clarity on who the accounting officer was under the relevant chapter of the Public Finance and Management Act (PFMA).  Mr Labuschagne said that section 46 of the PFMA dealt with the accounting officers of departments and other constitutional institutions, but he could not with certainty give a clear response.

Ms Smuts said that there was a need to separate the executive authority and the accounting authority.

Mr Jeffrey said that the CEO would be the accounting authority, but it was a question of who was the executive authority of the Commission as a whole – was it the chairperson and if so, to whom could he delegate in his absence?  The presumption would be that the delegation would be to the deputy chairperson – this delegation should not be done to any other member of staff. Certain decisions had to be taken by the Commission, and not by the Chairperson alone.

Vacancies in Commission

Clause 8(3) ‘A vacancy in the Commission must be filled as soon as practicable in accordance with section 193(4) and (5) of the Constitution, but within a maximum period of six months after the vacancy occurred.’

Mr Jeffrey said that the vacancy should be filled as soon as practicable, as opposed to within a maximum period of six months, as this would cause delays.

The Chairperson said that discussions had been held on this, and the Committee was waiting for the Minister to notify the Speaker. 

Mr Jeffrey said that there was need to avoid a lot of bureaucracy.  Why would the Minister have to inform Parliament of vacancy that it was aware of?

Mr Labuschagne thought that this was an administrative issue which needed to be considered at a higher level. The Chairperson said that concern was that the Minister had not informed the Speaker of the vacancy, and yet Parliament wanted to advertise the position in the media.

Mr Labuschagne proposed that a Clause should be included to the effect that as soon as a vacancy occurred, the Minister had to inform the Speaker. The Chairperson asked why the Minister was needed in this process?  Mr Jeffrey said that there was no such requirement in the Act. 

It was agreed that the words ‘…within a maximum period of six months…’ should be deleted.

Remuneration and allowance of members

Clause 9 (1) ‘The remuneration, allowances and other terms and conditions of office and service benefits of the full-time and part-time members are determined by the President in consultation with the Cabinet and the Minister of Finance.

(2) The remuneration of the members may not be reduced, nor may the allowances and other terms and conditions of office and service benefits be adversely altered, during their continuation in office.

(3) A part-time member may, for any period during which that member, with the approval of the Commission, performs additional functions, be paid such additional remuneration as may be determined by the President in consultation with the Cabinet and the Minister of Finance.’

Mr Jeffrey said it would cause some discomfort to pass a section that would be rendered useless once the Bill on the Public Protector was passed. He proposed leaving this section out, while retaining the Clause 9 of the original Act as a transitional provision.

Mr Labuschagne said that the removal of Clause 9 would leave the new Act silent on the remuneration of the members of the Commission. He suggested that this provision be saved. The Committee agreed that the Clause should be saved in its current form.

Meetings of Commission

Clause 10(1) ‘The meetings of the Commission must be held at the times and places determined by the Commission.

(2) If the Chairperson is absent from a meeting of the Commission, the Deputy Chairperson acts as chairperson, and if both the Chairperson and Deputy Chairperson are absent from a meeting of the Commission, the members present must elect one from among their number to preside at that meeting.

(3) The quorum for any meeting of the Commission is a majority of the total number of members.

(4) The decision of the majority of the members present at a meeting thereof is the decision of the Commission and in the event of an equality of votes concerning any matter, the member presiding has a casting vote in addition to his or her deliberative vote.

(5) The Commission must—

(a) Determine its own procedure: Provided that due regard must be given to the principles of transparency, openness and public participation; and

(b) Cause minutes to be kept of its proceedings.

(6) The Commission may from time to time by notice in the Gazette make known the particulars of the procedure which it has determined in terms of subsection (5)(a).’

Mr Jeffrey said that in instances where the contracts of a number of the members of the Commission expired and no quorum was realised, the Chief Executive Officer would call the first meeting in the absence of the chairperson, but where there was a secretary, he or she would call that meeting.

The agreement of the Committee was that the CEO should convene the first meeting in the absence of the chairperson.

Committees of the Commission

11. (1) ‘The Commission may establish one or more committees consisting of one or more members or one or more members and members of staff designated by the Commission and one or more other persons, if any, whom the Commission may appoint for that purpose and for the period determined by it.

(3) The Commission must designate a chairperson for every committee and, if it deems it necessary, a deputy chairperson.

(7) The provisions of section 10 apply, with the necessary changes, to a meeting of a committee.’

Mr Jeffrey) was concerned about the addition of ‘members of staff’ in Clause 11(7), saying that this would cause confusion among members of the Commission (appointed by the National Assembly) and members of staff. 

Ms Smuts said she had no problem with the provision, as it would enable the Commission to create committees.

Ms Judith Cohen (International and Legal Specialist, South African Human Rights Commission) said that there were a number of such committees usually headed by a Commissioner, with the role of taking minutes and following up. The members of these committees could not per se be classified as members of the Commission.

Mr Jeffrey said that if the Commission wanted to appoint someone from outside, there was no problem with that, even if that person were a member of staff -- but it had to be a proper appointment.

Ms Cohen said that most of the committees were constituted to provide advice, guidance and input to the Commission, but ultimately all the decisions were taken by commissioners. Under section 5 of the current Human Rights Commission Act, the Commission had the power to give certain duties and functions to the committee.

Mr Jeffrey proposed that a new provision be inserted, spelling out the purpose of the committees and stipulating that the chairperson designated for each committee under Clause 11(3) must be a member of the Commission.

Ms Pilane-Majake said that it was necessary to look at the committees in terms of their operation, as they would be implementing the mandate which was the responsibility of the Commissioners. The committees in this case would be implementing arms for the Commission, implementing what would be approved by the Commission, and anything new coming from the committees would have to be referred to the Commission for approval.

It was agreed that Clause 11(7) should be deleted.

Ms Pilane-Majake added that it was necessary to find out from the Commission if some of the proposals made would affect its operations by causing delays.

Conferment of powers and assignment of functions

12. (1) ‘The Commission may, in writing, confer the exercise of any of its powers or assign the performance of any of its functions to --

(a) a member;

(b) a member of staff; or

(c) a committee of the Commission.

Mr Jeffrey said that the Commission may confer powers or functions to a member, but conferment to a member of staff depended on what was being conferred. He was uncomfortable with conferment to a committee of the Commission.  Perhaps it would necessary for the Commission to confer some of the powers and functions to the CEO.

It was agreed that the Committee would deal with the rest of the Bill next week. 

The meeting was adjourned