SAHRC & SIU 2020/21 Annual Performance Plans; with Deputy Minister

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Justice and Correctional Services

15 May 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, 15 May 2020
Audio: SAHRC & SIU 2020/21 Annual Performance Plans 

Annual Performance Plan (APP) of Government Departments & Entities 20/2021

The Special Investigating Unit (SIU) protects state assets and resources from corruption, maladministration and fraud and it aimed to collect R10 billion in the its civil litigation processes and through the Special Tribunal. It identified added key strategic areas as being communications, legal, remuneration, data analytics, information communication technology (ICT) and performance management. It contextualised their work by noting the Auditor General report which suggested that there is an increase in corruption and irregular and fruitless and wasteful expenditure by government departments. With the additional contraction of the economy due to the COVID-19 pandemic, the SIU was of the view that this would increase. It noted that women and children are most impacted by corruption. It is making recommendations for legislative amendments to strengthen SIU powers in the pre-proclamation phase so that it may be seen by the public as activating their powers at that early stage of allegations. It noted the allegations of procurement irregularities with the COVID-19 R500 million relief package already. The lockdown had created a time lag for the SIU as it had not been declared as an essential service. It was able to accomplish an investigation in to a Gauteng contract by issuing permits to its investigating members and it ensured they were resourced to work from home. It expressed concerns about receiving its financing from government departments who it may be investigating. It was in conversation with National Treasury about correcting this funding model.

Members posed questions on SIU artificial intelligence capacity building, use of ICT and the employment of disabled employees. The filling of vacancies to achieve employment equity targets in senior management was raised in particular. Members asked if the Anti-Corruption Task Team (ACTT) is currently effective and why the SIU had not been declared as an essential service. They asked for the number of enrolled cases at the Special Tribunal, about the unavailability of judges to sit on the tribunal and how much recovery of outstanding money had been made by SIU to date. Concerns about increasing corruption were raised as well as a request for clarity on the proposed performance management system and an update on the State Attorney Office case.

The South African Human Rights Commission (SAHRC) recognised that the COVID-19 pandemic had brought many challenges to the forefront such as the right to food for those who live in poverty and the concerns about the breach of rights to physical security and dignity. It needs strong institutional support and mechanisms to ensure its effective monitoring and expressed concerns about budget cuts. It noted that ICT improvements are needed; but work has been able to continue online during the lockdown due to their preparations. The Commission decided to employ a chief information officer to ensure it moves in the right direction technologically.

Members asked questions about the SAHRC monitoring human rights violations during the COVID-19 lockdown; the section 11 committee it had formed; the ridiculing of South African sign language on social media; lack of access to information around COVID-19 data and modelling upon which lockdown decisions are based; if the SAHRC had requested its attendance at decision making meetings about the lockdown regulations; the City of Cape Town interdict application against the SAHRC to enter the Strandfontein homeless camp and if the SAHRC had produced their own report on the matter. Members asked if the Commission intended to respond to the indictment by the United Nations Human Rights Council about the continued evidence of torture at South African correctional centres; whether migrants were receiving food as well, the prohibition on food distribution by NGOs, communities and churches; the inspection psychiatric facilities and youth centres; and the threatened budgetary cuts to the Commission’s budget.

Meeting report

Deputy Minister of Justice and Correctional Services, John Jeffery, noted that he would be present in the meeting as an observer and would not speak.

Special Investigating Unit Strategic Plan 2020-2025, APP and Budget 2020/21
Adv Andy Mothibi said the whole executive team was present as they may benefit from listening in: Mr Andre Gernandt (Chief Financial Officer); Ms Neptune Mashego Chief Human Capital Officer); Mr Leonard Lekgetho (Chief National Investigations Officer); Dr Jerome Wells (Chief Legal Counsel); Mr Zipho Muguli (Head of Strategy); Ms Tumelo Zwane (Chief Information Officer); Mr Pranesh Maharaj (Chief Programme Portfolio Officer); and Ms Boaratwa Leshope (Chief Audit Executive); Kaizer Kganyago (Chief Communications Head); and Mr Thulani Mkhungo (Chief Risk Officer).

Strategic Plan 2020-2025
The Strategic Plan is based on the growth of its previously implemented strategy and he listed some strategic interventions which the SIU had achieved. Since the SIU believes that strategy should always deepen, in the next five years, along with building on its previous strategy, it intends on developing a focus in these key strategic areas to improve the business:
- Communications Strategy
- Legal Strategy - which includes the optimization of the Special Tribunal
- Remuneration Strategy
- Data Analytics Strategy
- Information Communication Technology (ICT) Strategy
- Performance Management Strategy
Integrity, teamwork, collaboration and independence, professionalism, drive and passion are their values.

Situational Analysis
External environment

Its primary focus in supporting government in the Sixth Administration is combating corruption.

Based on a perception survey conducted in 2019, the SIU recognises that the public is still very concerned about the levels of corruption. The Auditor General 2018/19 report indicates an increase in irregular and fruitless and wasteful expenditure. Over and above the memorandum of understanding (MOU) with the Auditor General, the new Public Amendment Act allows the AG to refer matters to SIU for its assistance. There continue to be a number of irregularities in the procurement space as 80-85% of SIU investigations are procurement based.

Economic factors
High unemployment and growing discontent amongst the citizenry. As the economies of the world continue to be compressed, COVID-19 makes this worse. National Treasury projects further contraction and this will have a huge implication on the escalating levels of maladministration, malpractice and corruption.

Social factors
The United Nation Development Programme (UNDP) indicates there are gender issues to be considered in how corruption affects women in particular but also children and people with disabilities. SIU has studied this report and will incorporate it into how it conducts and focuses its cases.

Legal factors
In its recommended amendments to its enabling legislation, the SIU has suggested that the pre-proclamation aspect be improved. SIU said they need statutory support so that complainants can see that it is activating its powers, even at that pre-proclamation stage.

Internal environment
State owned entities often outsource their investigations. Provincial, national and local, government are the highest users of their services. The overall number of proclamations, including those in the pipeline, is 86. A proclamation includes a number of investigations. Adv Mothibi gave the example of the previous financial year, where about 1300 investigations were concluded in various proclamations.

Unique Offering of the SIU
SIU considered that its civil litigation capability sets it apart from its peers. When the SIU met with its colleagues—the National Prosecuting Authority (NPA) and the Hawks to discuss improving their integration process as part of the Anti-Corruption Task Team (ACTT) they all agreed to optimise the use of the SIU civil litigation process. This is especially now that it is receiving allegations about the abuse of the COVID-19 Relief Fund. Optimising this offering will ensure the recovery of stolen money and assets.

Performance Outcomes
• Compliant and high-performance SIU that is well-capacitated to rid the country of corruption, maladministration and fraud in state institutions.
• Protect state assets and resources from corruption, maladministration and fraud and realise full value for money for state programmes. In the next five years, SIU aims to collect R10 billion in the optimisation of civil litigation and the Special Tribunal.
• Ensure confidence in governance systems structures and policies as it continues to do its work.
• Contribute preventive mechanisms against corruption, maladministration and fraud in state institutions.

Annual Performance Plan 2020/21
Generally, the SIU does not see a fundamental change in its APP as a result of COVID-19. Apart from the allegations it is receiving of corruption and maladministration of COVID-19 relief funds and irregular procurement, SIU is continuing to deal with other matters and has come together with the ACTT to ensure that the COVID-19 Relief Fund allegations are dealt with efficiently.

The COVID-19 impact on operations and planned targets has resulted in a time lag as the SIU was not designated as an essential service. Most of its employees were at home as directed by the lockdown regulations and most state officials were not available to continue with investigations. However, this week, Adv Mothibi had a meeting with all the provincial heads and the SIU is working on a plan for once the lockdown has been toned down to a level where it can really interact with state institutions. COVID-19 has also affected the SIU’s ability to invoice.

The SIU is ensuring the procurement of PPE, masks, gloves and sanitizer along with a deep cleaning and disinfection of their offices. It is implementing the staggered return of a third of its employees to work, along with a work-from-home protocol and providing the means for employees to do so. It is also setting up screening protocols and developing a plan with the expertise of health professionals about mitigating measures for its employees over 60 and with chronic conditions.

2020/21 Budget and Medium Term Expenditure Framework (MTEF)
Chief Financial Officer, Mr Andre Gernandt, said that the expected grant allocation is R452 million, which makes up 55% of SIU income. As it invoices for its services in terms of the SIU Act, 40% (R331m) of its income comes from invoices for work done. The remaining 5% comes from interest and other revenue.

SIU has a large human resource component as these resources are its assets: 72% (R594m) of expenditure goes to compensation of employees. Goods and services such as office rental, travel and administrative expenses: 25% (R204m). Depreciation makes up 3%.

Programme 1 Administration: R199 million, 24% of the budget.
Programme 2 Investigations and Legal Counsel: R594 million, 72% of the budget.
Programme 3 Data analysis and prevention: R27 million, 3% of the budget.

The reason for growth in the MTEF is to meet the demand of the increased proclamations.

Human capital
Chief Human Capital Officer, Ms Neptune Mashego, said there is a 7% level of representation of women at management levels. SIU aims to achieve the 2% goal in employing disabled persons. Its engagements with the Department of Labour have been slow but the SIU is currently advertising eight positions with the Department of Labour to attract people.

A Forensic Investigator Development Programme was started in the previous financial year to train and provide work-based knowledge to young, unemployed LLB graduates. SIU has also identified the need to implement a Leadership programme for the 2020 financial year.

Performance Information
Adv Mothibi noted that the remaining slides go into detail on the actual targets and indicators. SIU expressed hopes to continue maintaining a clean audit as the previous three years. It also aimed at maturing its risk management environment. As it can only do its work appropriately when it is appropriately resourced, the filling of vacancies is being fast-tracked now that trade union engagements are complete. He noted the SIU aims at increased cash recoveries through the civil litigation processes. Now that there is a Special Tribunal, there is no excuse for recoveries not to be made.

Discussion
Mr Ganief Hendricks (Al Jama-ah) said that he was encouraged by the resources that the SIU now has to carry out their mandate but he feels there is something lacking in resources such as robotics, internet improvements and artificial intelligence which similar units around the world are relying on. He commented that he hoped the SIU would protect Members of Parliament as his own personal email had been hacked.

Ms W Newhoudt-Druchen (ANC) asked how employment equity targets are being mainstreamed into SIU targets. She asked how the vacancies, at more than 10% of staff, will be reduced. Since ICT has become very important, how are they going to improve and mitigate its ICT challenge? There was no mention of people with disabilities on the staff and she asked if disabled people will be recruited and if SIU specialised training caters for them. What are the SIU’s health and safety protocols particularly during COVID-19?

Adv G Breytenbach (DA) asked for more information about how they are dealing with the COVID-19 virus and how they will carry out investigations under these conditions as well as invoice and get money from government departments. As the SIU always has trouble in making these collections, she would like to know what progress has been made in getting money in. What progress is being made with the Special Tribunal? She noted the Lekabe case and asked how the tribunal is operating, how many cases have been enrolled and if other institutions have tried to make use of this facility.

Mr S Swart (ACDP) greeted Adv Mothibi and his team and said that he is one of their greatest fans. He added that the Finance Minister has noted the pleas of the ACDP for more funding for the SIU. He is concerned about the SIU’s efficiency during the COVID-19 period. SIU alluded to the fact that there have been recent procurement allegations. The Committee knows that there have been financial deviations due to emergency procurement and he asked how they are able to work with other law enforcement agencies, particularly during the pre-proclamation stage so they can quickly look into these cases and bring them before the tribunal since they pertain to the COVID-19 R500 billion relief package that has largely been borrowed from overseas.

He asked about how the tribunal operates, particularly now as the courts are not sitting. He asked how the Committee can assist the SIU and if it is communicating with the Chief Justice to recover funds quickly. He asked about their funding model and their inability to invoice departments. The lockdown means their work load is lessening and he asked how that will impact their budget. He stressed how critical the collection of funds is and asked how the SIU will be impacted by the looming adjustment appropriation budget cuts across all departments. He noted its goal of collecting R10 billion in recovery but one knows it is much more that was stolen. He asked them to explain why they are not an essential service. They clearly should be as operational as possible during this time to do as much as they can with the requisite health and safety protocols in place.

Ms N Maseko-Jele (ANC) thanked Adv Mothibi and the team. Referring to the AG report and the perception survey, she was worried because corruption seems to be increasing daily. She asked why irregular and wasteful expenditure is still high in government department and why the figures on corruption are not going down. She asked if the courts are responsive in the fight against corruption. She thinks they should look at the punishment as perhaps it is too lenient and causes people committing these crimes not to fear the consequences. She is not sure if the tribunal will be helpful. If the SIU cannot recover the money, the exercise they are engaging in may be futile. She would appreciate some insight as she heard that people were receiving jail time of only three years and sometimes a very low fine instead after having stolen huge amounts. Such occurrences will hamper the work of the tribunal. She asked if the SIU wants the Committee’s assistance in creating commissions of inquiry. The SIU recognises the huge public outcry and expectation that corruption will be dealt with and wrongdoers will be held to account. She asked if the public would also want the proposed commissions. It seems that women and children are most impacted by corruption. There are lawyers involved in corruption who are eating the money of vulnerable people and orphans. If there are corrupt people within the justice system, how will the country win the battle against corruption.

Chairperson Magwanishe asked if the money owed to them was R500 million.

Adv Mothibi replied that it was about R420 million at year end as the SIU had seen some payments from government departments.

Chairperson Magwanishe also asked for an explanation about what the SIU means when it refers to the unavailability of presiding officers. He asked how SIU intends to fight corruption and fraud in the private sector.

Ms Newhoudt-Druchen asked about the invoices not paid on time and if they have now been paid. The amount mentioned on slide 12 was R106 million – has this been reduced at all?

Mr W Horn (DA) asked about the SIU involvement in investigating emergency procurement during the COVID-19 crisis. On slide 22, mention is made that this being done through the ACTT. Yet Adv Mothibi told the Committee that the SIU, NPA and the Hawks came together and decided that due to the SIU specific capabilities it would be the vehicle to deal with this. This is worrying in terms of the need for proclamations. One does not know for how long COVID-19 relief will have to continue, so what is obviously needed is more immediate action. He asked if the ACTT has really met. Before the lockdown the Committee had a meeting with the NPA who said the ACTT is non-functional. There now seems to an informal SIU investigation going on but he does not think that this will serve suffering South Africans in need of urgent relief so they get proper value for money for where the public purse is funding food parcels specifically.

Adv Mothobi’s responses
Internet, robotics and artificial intelligence and the safety of Members
The SIU has included as part of its ICT strategy, the need to improve things like data analytics, and empowering members to work from home. Laptops are obvious tools but it also wants to empower investigators as well. The cyber-analytics environment is also related to ICT and some of their needs have been identified. SIU has benchmarked with their peers in Africa and noted that their cyber analytics requires improvement. It remains to be seen how robotics can assist them in conducting their investigative methods. It will seek ICT expertise to discover where robotics can assist them in their investigations as it has not thought about this yet. On the SIU protecting the digital security of MPs whose computers have been hacked, the SIU suggested that such concerns be referred directly to the State Security Agency and it is happy to do this, if the Committee would like it to.

Employment Equity
SIU was aware that it needs to improve its employment of women and disabled people at senior management levels in particular. It is in conversation with the Department of Labour on this and is working to ensure that the workplace is properly configured so that it is disability friendly.

ICT
SIU has included this in its strategy and it wants to improve this over the next five years.

Training
When the SIU employs disabled people, the SIU needs to ensure that there are tools to assist them to do their work and that its training environment takes that into account.

COVID-19 and non-declaration of SIU as an essential service
The regulations on essential services were published before it took the matter up. The SIU is dealing with this by handing out permits to enable members to do their work. An example of when this happened is when the Gauteng Premier asked them to investigate a R30 million government e-contract. The SIU contacted their members and issued permits that enabled them to do the work. The work was completed within two weeks and submitted to the Premier and at an appropriate time the reports on this work will be coming out. Each employee has been issued with a laptop and remote connectivity has been provided for. When interviews need to be conducted, the SIU ensures that regulations are adhered to.

Investigations
The SIU aims to do a Microsoft Teams engagement with witnesses and to finalise witness affidavits by finding a way to get them to their provincial offices.

Recovery of funds
Adv Mothibi said that some payments have been coming through, but asked the CFO to give a more concrete response to this. This challenge speaks to the SIU funding model. In some instances, the SIU finds itself sending invoices to the same institutions it is investigating. He asked if this occurrence does it not merit a review of the SIU funding model such that the SIU does not depend on payments from state institutions. SIU is currently engaging with National Treasury on this point.

Special Tribunal and Enrolment of Cases
Twenty matters are currently enrolled at the Special Tribunal to the tune of R2.1 billion. The SIU legal team informed Adv Mothibi that there are 15 more cases to be enrolled in the next few days.

The SIU is engaging with the Special Tribunal President, Judge Makhanya. The lockdown directives delayed the work of the Special Tribunal a bit. But after the recently issued new directives, it will now begin adjudicating cases. The SIU is looking forward to all of these cases being adjudicated as it will bring about the recovery which the public has been looking forward to. Some of the judges had raised that case administration needs to be improved and as the SIU has now addressed this, there should be no delay going forward.

The SIU is speaking to the Judge Presidents to see if some of the cases in the High Courts can be transferred to the Special Tribunal, but there are legal rules around this. However, the SIU is hopeful as some judges on the Special Tribunal sit in the High Court.

Efficiency of ACTT
ACTT has met to ensure that their efforts are integrated, particularly in the pre-proclamation stage. As the SIU can only formally investigate once it has a proclamation, in the pre-proclamation phase it immediately engages the Hawks so that the case is addressed immediately whilst a team monitors the case so that it is dealt with efficiently

National Proclamations
There are big procurement challenges which need to be pursued, it is therefore working on a national proclamation. SIU is receiving reports around KwaZulu Natal and the Eastern Cape. SIU members have been seconded to assist the Department of Public Works in looking into the Beit Bridge fence. Work has been going on throughout the lockdown, although most members were seconded at home, it was able to address most of the work that it sought to complete. As it stands SIU is preparing the workplace for its members to return to work in phases. The permit method has enabled members to do their work.

State Attorney update
The status of the state attorney investigations was presented earlier in the year to the Committee. SIU did not prepare updates on specific cases for this meeting but it is happy to come and present on the matter. The SIU has ensured that the lawyers who are culprits in this case are dealt with in terms of civil litigation. There have been several medico-legal cases within the last week where lawyers were demanding payments from the Eastern Cape Department of Health. The SIU has instructed the Department not to make payments and are taking up these cases criminally. It will ensure that all culprits identified in their investigations are dealt with.

Corruption increasing
The SIU takes into account reports by research institutions such as Transparency International and the Auditor General. On why corruption is not reducing, the SIU has observed that the lack of consequence management is an issue such as failure to prosecute, failure to hold disciplinary processes and failure to recover. He knows that the NPA is doing its best to prosecute the guilty parties. The SIU has put measures in place to monitor if state institutions are taking disciplinary action and firing people who are responsible. On the whole, it is a matter of consequence management being improved on. Law enforcement needs to make a concerted effort against corruption and that greed needs to be addressed in the public and the private sector. If SIU and law enforcement fail, they will continue to see what the public observes as impunity. If impunity is addressed, corruption figures should begin to decrease.

Local government sector focused approach
SIU is working with the Department of Cooperative Governance & Traditional Affairs (COGTA) to establish some processes together. The SIU had noted that it is working in the Health Sector where they have established a Health Sector Anti-Corruption Forum and they are seeing results of this focused approach in the sector. The SIU wants to do the same in local government. A process has begun which COGTA and SALGA have supported. The remaining process involves ensuring that it is presented appropriately to the Minister.

Commissions
The SIU is not proposing more commissions. It is only proposing that they look at the outcomes of these commissions so that they are ready if cases are referred to them.

Vulnerable groups
Corruption affects vulnerable groups the most. The more the country deals with corruption, the more its effect will lessen. Whether cases are brought by vulnerable groups or others, they will ensure they address cases as efficiently as possible

Unavailability of judicial officers at Special Tribunal
Appointed judges are also serving at the High Court. For example, Judge President Mlambo in Gauteng has released members to serve on the Tribunal. However the process of appointing acting judges needs to be finalised.

Recovery of money from state institutions
Mr Gernandt, SIU CFO, answered this question. The SIU has made some inroads on debt recovery in the 2019/20 financial year. After having done its research, the SIU strongly believes that the long-term solution is to review the funding model, and they intend to continue engaging National Treasury on this proposition. There had been a joint workshop scheduled with Treasury and the Department of Justice on this point but COVID-19 interrupted their plans. In the short term in the previous financial year the outstanding debt was in the region of R500 million, and at 31 March 2020 it was R480 million. SIU recovered R355 million in cash that year and they invoiced departments R279 million so they have recovered much more than they have invoiced. The challenging sphere of government is local government for payment of invoices.

Performance Management System
The SIU had a system which was not output based. Although it gave a sense of how employees performed, they were not able to manage 'failure to perform' appropriately because there have been no performance agreements with employees throughout the life of the SIU. It has now commenced to put this in place and has engaged trade unions ad nauseum. They are now implementing based on the timelines presented.

As the executive committee, they need to be exemplary. The executive has begun drafting the performance operational plans of their business units which will be converted to performance agreements at a later point. These will be used to measure the performance of each and every executive.

Slide12
This slide refers to what the AG is reporting and is not relating to SIU internal statistics. These are not the invoices unpaid of the SIU.

ACTT
Speed of action is very important during the COVID-19 period, therefore when they met recently, they coined a strategy to help them improve on and integrate their approach. The strategy is divided into three: criminal, civil and disciplinary processes. When a matter is reported, and there is not yet a proclamation covering that matter, those matters should be addressed immediately through the Hawks process, who will immediately register a case and begin investigating. They have created a Fusion Centre where they all sit when they receive a matter and they immediately allocate it to the party that can address the matter most speedily. Since the various agencies have their own mandates, if the SIU receives a matter where they suspect criminality, they will refer the matter to the NPA, but they will also report to the Hawks so the case is registered and to ensure there is no overlap. For example, when the Hawks investigate a procurement matter and they are of the opinion that a contract has been entered into irregularly, the tendency is that the Hawks move forward with the criminal matter and the civil matter is left to the state institution involved. At this point matters tend to get lost, and this is currently being addressed. It believes they have put a framework in place to act and respond quickly to these matters.

The Chairperson thanked Adv Mothibi for his responses. He felt the SIU was failed a lot by its IT system. The Committee will organise a meeting with the SIU and NPA for an update on the State Attorney Office investigation and other issues. This will be organised after the budget vote. The Committee thanked the SIU for the work it is doing. As government is cleaned up, this will put a lot of pressure on the SIU but the Committee thinks that it is up to the task to recuperate as much money as possible.

South African Human Rights Commission (SAHRC) Strategic Plan / APP
Adv Tseliso Thipanyane, SAHRC CEO, explained that the SAHRC Chairperson was having technical difficulties joining the meeting but they would begin presenting in the meantime.

High Priority Areas
- Pro-Human Rights Budgeting— influencing the budget to ensure human rights issues are prioritised
- Good governance, Anti-Corruption and Human Rights
- Right to Healthcare
- Right to Education
- Human Settlements, Water and Sanitation
- Right to land
- Environment
- Optional Protocol to the Convention against Torture (OPCAT) where the SAHRC has been designated as coordinator of the National Preventative Mechanism (NPM) as well as playing a monitoring role.

Promotion Strategies
- High Impact engagements to influence legislation, policy and service delivery
- Strengthening strategic partnerships and collaborations with other Chapter Nine institutions
- Empowering communities to proactively engage with human rights issues and promoting public outreach.
- Using media platforms to communicate and raise awareness and increase its accessibility and visibility

Rights Protection Strategies
- Instituting strategic impact litigation.
- Proactively conducting inquiries and hearings.
- Using alternative dispute resolution and mediation.
- Analysis and reporting on complaint trends.

Monitoring Strategies
1. Consolidate monitoring system to asses and report on the state of human rights
The SAHRC has been struggling to monitor effectively but is looking at ways to strengthen this so it can advise government and make necessary interventions where it matters. It will focus particularly on equality, economic and social rights as well as civil and political rights. It brought to the Committee’s attention that there are still gaps when it comes to the Equality Act as the promotion mandate of the Equality Act has not yet come into operation, therefore the SAHRC mandate to submit an annual report on equality, gender and disability is still somewhat lacking, but the Commission is going ahead regardless.
2. Strengthen monitoring and implementation of human rights conventions
The Commission noted that it was embarrassing when it was raised in Geneva last year the high incidence of torture in South Africa despite section 12 of our Constitution prohibiting it
3. Issuing and monitoring implementation of report recommendations / directives to improve the state of human rights.

Institutional Development Priorities
To promote the Commission’s effectiveness, it needs to have strong institutional support and strong mechanisms to ensure its effective monitoring. ICT improvements are needed. However, work has been able to be continued online during the lockdown. The Commission has also decided to employ a chief information officer to ensure the organisation moves in the right direction technologically. It will soon be releasing a report on the Fourth Industrial Revolution and how SAHRC can use technology to strengthen its work.

Processes under COVID-19 State of Disaster
Mr Siyasanga Giyose, Head of Strategic Support and Governance, said that the declaration of a State of Disaster carries huge human rights implications.
1. The State of Disaster necessitates review of plans due to its huge human rights implications.
2. The Commission has established a Nerve Centre to manage direct urgent HR matters in response to challenges presented by the pandemic.
3. Developed implementing guidelines:
- An internal protocol to ensure efficient working arrangements online.
- Issued working tools for staff that need to protected in the field.
- Guideline to inform appropriate interventions on human rights interventions and responses.
4. Established a Committee on COVID-19 in terms of section 11 of the SAHRC Act consisting of more than 400 civil society organisations that act as monitors to alert the Commission to human rights violations so that they engage government on the matter.

Interventions
- Promotion: The Commission is disseminating material to raise awareness of rights and an understanding of the lockdown regulations and their responsibilities.
- Protection: It addressing specific complaints and engaging with the National Command Centre.
- Monitoring: It is doing this remotely through media and civil society.

Areas of Concern in light of COVID-19
The pandemic has given sharp focus to the challenges of inequality faced in the country. The impact on vulnerable groups is significant.
Homelessness has been an issue, especially in the Western Cape.
Water and sanitation provision especially in marginalised communities.
Access to education requires recovery plans that are equitable in the implementation of catch-up plans
The right to food to those who live in poverty and the equitable distribution of food to communities. Corruption has been identified in this area.
Economic impact on salaries; debt and social relief; job losses and growth and credit rating downgrade
Physical security and dignity have been affected.

Planning and Reporting Implications
The Commission is currently assessing the impact of SAHRC COVID-19 interventions and government's responses. These findings will be integrated into the Commission’s quarterly reporting.
Whilst human rights priorities and strategies are not affected, some APP planned targets and methodologies need to be adjusted due to the pandemic.

SAHRC Budget overview
Mr Peter Makaneta, SAHRC CFO, said National Treasury granted a R200.1 million budget allocation. Other budgeted income is: Interest: R0.5 million; Rental income from subletting a floor: R3.98 million; Surplus rollover from 2018/19 of R9.1 million. Cumulatively, total revenue budget is R213.7 million. Cost cutting measures implemented in 2019/20 will be retained in 2020/21. These include: Retaining the freezing of some vacant positions, reviewing Commission organisational structure to ensure efficient usage of personnel resources and sub-leasing a portion of the Head Office space.
- 66% of the budget covers personnel costs (reduced from 69% from last year).
- 23% is allocated Corporate Support such as office rentals, municipal charges, supply chain costs.
- 12% is allocated to core operations; this is the balance of the budget.
The remaining slides explain budget allocations per programme.

SAHRC Chairperson comments
Prof Bongani Majola, SAHRC Chairperson, apologised for technical issues which prohibited him from joining from the start. He thanked the Committee for giving the Commission the opportunity to present and wished the Committee members good health and safety during this time. The COVID-19 crisis has highlighted the fact that there is a lot of work to do as the Commission. Mr Giyose referred to some of the issues highlighted by the pandemic, which need the Commissioners’ attention. The pandemic is going to have far-reaching consequences on human rights across the world and they need to be ready to meet that challenge. To do so, the Commission needs strengthened capacity. It was therefore concerning to hear about budget cuts to the Commission that were announced last week. As they are constrained in how they are doing their work, they need to rethink how they do their work. Though it is facing challenges, the Commission is finding it to be an exciting period to promote human rights.

Discussion
Mr J Selfe (DA) asked about how the Commission goes about its OPCAT responsibilities since it has been designated as the National Preventative Mechanism. Many of the torture incidents happens in correctional centres and he asked for more detail on what mechanisms it is adopting to synchronise its services with that of the Inspecting Judge and the independent correctional centres visitors. He said that the reference to a section 11 committee with more than 400 civil society monitors does not match his careful reading of section 11. He asked who these monitors are and on what basis they were selected because the Committee selects the Commissioners with great care. He asked what powers these section 11 committee members have in terms of sections 4(a) and (b) of the SAHRC Act.

Ms Newhoudt-Druchen said that she as part of the deaf community is very grateful that the government started providing South African sign language interpreters for the Presidential updates on COVID-19. However, people are mocking sign language interpreters on social media and the deaf community feels that this discriminates against their rights. She asked what the Commission can do about this and asked that it does something. She asked if the SAHRC was in conversation with the Department of Basic Education to ensure children with disabilities have access to education whether it be online or on TV. Currently deaf children are falling way behind as nobody is interpreting educational courses to them or providing access to interpreted courses. She asked about SAHRC's involvement in providing this access. SAHRC is also involved with the Independent Monitoring Mechanism (IMM) for the Convention on the Rights of Persons with Disabilities (CRPD) and access to information. Can the Commission provide details on that. She asked if the SAHRC website is accessible to disabled people. She asked if children at youth centres have access to the SAHCR and what access is given.

Mr W Horn (DA) said that the SAHRC had a webinar on human rights and COVID-10 on 30 April. If the Daily Maverick report on the webinar is correct, Prof Majola remarked that the Commission came to the conclusion that the limitation of some rights during hard lockdown at Level 5 was necessary to deal with the state of disaster. This comment was given towards the end of the Level 5 lockdown. He asked for comment about whether the Commission is still satisfied the manner in which citizen rights are limited in Level 4 is still justified. He asked this with particular reference to the curfew.

He asked if SAHRC has advised government on the Minister of Social Development's directive that only government is now to be tasked with the distribution of food relief. Therefore, NGOs, community-based organisations and churches that have been doing this work since even before COVID-19 must stop and work through the governmental programme. Given these programmes have been in place and well-structured, what impact will this have on the right to food that everyone in South Africa has. Section 22 of the Constitution guarantees the right to freedom of trade, occupation and profession. This is not a focus area of the SAHRC, but he hoped it was within their purview along with all the rights in the Bill of Rights during the time of COVID-19, as the lockdown regulations contains many limitations. He asked if the Commission had engaged with government about limiting those limitations to prevent a spiral in the scale of poverty. Given that the Commission is still the custodian of the right to access to information, he asked if it was worried about the lack of access to information about decisions on the limitation of rights that are deemed secret.

Ms J Mofokeng (ANC) asked about the reference to CEO Special Projects in the budget. She requested a detailed report on the human rights problem areas identified on slide 15. Has the Commission taken proactive steps in their work during the lockdown? Can they report on police and SANDF conduct in respect of human dignity? She asked about the overcrowded SASSA offices across the country and if the Commission monitored that aspect and what they have observed so the Committee can understand the state of its monitoring. She noticed the budgetary challenge and wondered if the moot competition was budgeted for. She commended their work on human rights advocacy and public awareness. The Child Justice Act instructs that children awaiting trial should see the magistrate within 30 days. Due to the lockdown what is being done as the rights of children are still important during this time?

Mr Swart said he was grateful for the overview on its monitoring of the COVID-19 limitation of rights. The Commission needs to be part of the drafting of regulations and use its powers to call on government to explain their regulations. He expressed concern about HIV and TB patients not accessing medication during the pandemic as this would lead to deaths. He asked if the SAHRC intended to respond to the United Nations Human Rights Council on its criticism about the heavy-handedness of the lockdown. He is concerned about ordinary law-abiding citizens who may leave the lockdown with a criminal record for small breaches. The data and modelling on COVID-19 is secret upon which decisions are being taken. This should be given to the public along with more information about a move to Level 3. People are being turned away from hospital because beds are being reserved for COVID19.

Mr Swart said it is totally unacceptable that the budget is being reduced for a Chapter Nine institution such as the SAHRC and that NGOs and churches are being asked to stop their food-relief work. He suggested it may reach the stage where in addition to calling government to account, the Commission may want to recommend impact litigation in this area. He asked the Commission to consider becoming involved in the drafting of the regulations as the lockdown level decreases to Level 3.

Adv H Mohamed (ANC) said while he agreed with the comments made about human rights violations, he was not impressed by the DA in the Western Cape whose leadership encourages and incites people to break the lockdown regulations. Those who do that should be arrested as this has nothing to do with human rights violations. He noted the real risk to the functioning of the Commission is if its budget should be cut during this time. The handover of PAIA responsibilities to the Information Regulator is discussed in the APP of the Information Regulator and he asked when the work of the memorandum of agreement signed last year will begin. In the City of Cape Town, there are evictions taking place, and when confronted, the victims are told their structures are land invasion because the structures are unoccupied. Two Fridays ago, he witnessed 18 structures destroyed which were certainly occupied and were nevertheless demolished. He asked if the SAHRC was aware of this destruction by city officials in particular. He raised the investigation report which was independently produced by NGOs on the City of Cape Town’s Strandfontein shelter for street people. The UNCHR has declared the site a location of human rights violations. He asked if it is true that the Commission has recommended that the Strandfontein Camp must be shut down. He asked if the SAHRC has brought out their own report. Finally, he asked about a media statement by the Legal Resources Centre that it is acting on behalf of the SAHRC against the City of Cape Town which is seeking an interdict against the SAHRC.

Dr M Ndlozi (EFF) said that some of the comments on the part of the Committee in this meeting have been regrettable and that Members should seek to distance themselves from them. The Commission must leave the meeting understanding that there are a number of points of difference within the Committee itself on some of these matters. He noted that the SAHRC did not say much about migrants. He would like to know if there is a special effort being made by government to cater for foreign nationals, especially in poor communities. When government allows the opening of mines and factories, he asked if this does not give rise to the need to monitor the obligation of employers not to expose workers to COVID-19. He asked if there should not be collaboration by the SAHRC with the Department of Labour to monitor this as a human rights concern during the time of COVID-19. His fundamental difference is that some Committee members, particularly from the DA, are trying everything in their power to mobilise against responding to a genuine disaster because they do not think the lockdown is necessary. They know very well that South Africa was suffering from many challenges before COVID-19 and it was fundamentally petty to say that a person not being allowed to go to the beach is a human rights violation. There are more fundamental rights such as the right to life. What increased infections in Europe was summer beach vacations and everyone should be working together to fight against the virus. The reason the United States is frustrated with South Africa is because governments like that of the Western Cape and some DA members are not contributing to ensure that food is available and compliance continues. He finds it seriously sad and regrettable that there are people who are present in the committee calling themselves public representatives and yet not considering how they can contribute. When government says food will be distributed through vouchers and not through NGOs and churches, this is because no one else can deliver food in accordance with social distancing procedures. All these measures are important and are not the result of the pursuit of dictatorial power.

The Committee was heated and a point of order was raised

Adv Breytenbach (DA) said that the point of this meeting was to hear about the SAHRC and not to receive a lecture from Mr Ndlozi about what he thinks as frankly no one cares. She is not listening to him anymore and that, if the Chairperson allows it, she will leave the meeting.

The Chairperson said that Mr Ndlozi was expressing his views. He told Adv Breytenbach that he does not think there is anything stopping Members from expressing their views, but he thinks that he is finished now and the Committee can move to responses.

Mr Ndlozi thanked the Chairperson and said that if anyone wants to leave the meeting because they are scared of being challenged, they can leave.

The Chairperson told Mr Ndlozi that he had had his time to speak and asked that he allow the Commission to respond.

SAHRC CEO response
CEO special projects budget
Adv Thipanyane replied that this is money assigned to the SAHRC from Treasury for the NPM. It is a three-year budget which has been ring fenced. The procurement of software for the monitoring and evaluation system was also part of the special projects budget of the CEO along with the ring-fenced NPM budget.

Moot Court
The Commission had assigned R1 million for the Moot Court last year. The Commission hosts the event at the Constitutional Court and flies, accommodates and trains students selected by the provinces to compete in the final round. The budget was also available for 2020/21 but due to COVID-19 challenges in schools, there may be a problem in fulfilling this.

The CEO commented that even a small budgetary cut would greatly affect the Commission’s small budget and efficacy. This is all the more so during COVID-19 in view of the demands on the Commission.

SAHRC Chairperson response
Prof Majola said that he will answer some questions and asked that the Commission be allowed to respond to the other questions in writing because of the amount of detail necessary to put into those responses.

OPCAT
The Commission is a leading organisation in Optional Protocol to the Convention against Torture (OPCAT). The idea behind creating the National Preventive Mechanism (NPM) was that the Commission would be the co-ordinator of a number of entities like the Judicial Inspectorate for Correctional Services (JICS) and the Independent Prison Monitors (IPM). This has not really happened because of the question of the independence of the other components. For now, the Commission is proceeding to do the work with a lot of consultation with bodies like JICS. There is a special unit that is responsible for co-ordinating with all of these bodies. The Commission is aware of incidents of torture in correctional services. He asked that the Commission respond in writing to the details about torture. Torture have been brought to the attention of the Correctional Services Commissioner in a number of instances with the view to improving it. There have also been visits and inspections to correctional centres, especially where there are big problems.

S11 Committee
The committee members are not the organisations themselves, but rather, the people put forward by those organisations.

Ridiculing of Sign Language Interpreters on Social Media
He was shocked to hear that people were ridiculing interpreters and the South African Sign Language. Although it is difficult to trace people on social media, they will be followed up on and in some cases, the Commission has been successful in doing this.

Access to Education by Disabled Children and Safety at Schools
The SAHRC is having an ongoing conversation with the Department of Basic Education. A day or two ago the Commission wrote a letter to the Minister raising a number of questions on access, safety and readiness.

Children at youth facilities
He knows a Commissioner goes to do inspections but as he would like more information on it, he asked that they be allowed to submit a response in writing.

Commission's response in light of COVID-19
Developments relating to COVID-19 pandemic and the issues surrounding it are very dynamic. The Commission is trying to keep up to see what actions they can take. It had a meeting that morning to try and stay up to date with progress on the matter. Its experience is that concerns raised with the National Command Council are taken seriously. When there are issues it will continue to refer these to the Council.

Monitoring of rights
The Commission does monitor rights. Not long ago he wrote a letter to the Minister of Social Development raising a number of these issues. The Commission intends to be careful in saying what it thinks should happen in certain cases as there have been instances where people did not social distance in the pursuit of food and risked infecting each other.

Access to information
Prof Majola requested that he respond to this in writing.

SAPS and SANDF implementation of lockdown regulations
Prof Majola said that he has spoken out against this and has written to the Ministers of Defence and Police. He has tried to reach out to the National Command Council head with little success.

Children awaiting trial
He asked that they respond in writing as he has not been fully briefed on this point.

Monitoring of lockdown
Initially, lack of PPE was an issue, but they intend to jack up their efforts to do more to monitor.

Distribution of food and secret data-modelling
Prof Majola asked that this be responded to in writing.

Budget cuts
He thanked Mr Swart and Adv Mohammed for recognizing the work the SAHRC does and the real threat of the budgetary constraints.

Evictions
This is a recurring issue which needs the Commission to be resourced to deal with it as it is recurring.

Prematurely issued report
The SAHRC has not yet finished its own report on this matter and it is unfortunate that the report got out.

Interdict against the Commission
The Commission was monitoring the Strandfontein camp. It observed that the rights of homeless people at the camp were not being respected. As closer monitoring was needed, the Commission engaged with the City for further discussion. The City then decided that the Commission should not monitor this. This is impermissible. Monitoring is the Commission’s constitutional mandate and it is not permissible to stop this. The City wanted to decide who from the Commission may go and monitor.

Closing of the Strandfontein camp
Prof Majola asked if he could revert to the Committee on this. He thinks the City wants to do this, but he is unsure. He knows that the matter is being argued before a judge of the High Court.

Migrants access to food
He thought that migrants were no longer being excluded from access to food. The country has a positive obligation to provide food for migrants. He was under the impression that this had been cleared up but he would confirm this point.

Monitoring of businesses
This is something the Commission should consider paying closer attention to now that businesses are re-opening but budgetary constraints may prohibit it.

Further questions
Adv Mohamed said that the homeless people from the Strandfontein camp have been thrown onto the streets again. He asked if the Commission has finalized it report on Strandfontein. What is the nature of the litigation conducted by Legal Resources Centre as it seems to be defending the Commission? This is the first time that a Chapter Nine institution has been being taken to court by another organ of state, in this case a municipality. He asked if the Commission is party to what is happening at Strandfontein going forward.

Chairperson Magwanishe asked how the Commission will be celebrating its 25th year of existence since COVID-19 has impacted. What projected savings does SAHRC see such as transport costs. The report includes a complaint of non-responsiveness of departments to the Commission. The Committee needs a detailed account of which departments these are. He asked if psychiatric patients have been considered.

Mr Swart asked if the SAHRC will be responding to the UNCHR. He asked that if the National Command Council does not respond in the future that the Commission alerts the Committee to this.

Response
SAHRC Commissioner Mohamed Ameermia commented that during this time, the Commission needs to think out of the box to carry out their mandate. His team on housing and water and sanitation is currently sitting with the COVID-19 platform of the National Department on Human Settlements. They are sitting in two capacities firstly, to advise and where there are human rights violations, they take them to task. However, due to the engagement process, they are succeeding in getting access to water for people as quickly as possible.

Strandfontein camp and related court interdict
Prof Majola replied that the Commission has to yet completed its own report on the Strandfontein shelter. The nature of the ligation is in the form of an urgent interdict to stop any SAHRC member from coming within 1km from the camp except for Commissioner Nissan. The Commission is opposing this application. The Legal Resources Centre has worked closely with the Commission from time to time and this is an instance of the ongoing collaboration. The Commission insists that it needs to monitor the camp itself as it retains independence from the City in fulfilling its constitutional mandate.

Celebrating 25th anniversary of SAHRC
The SAHRC is thinking of having a celebration in October or even later. It is thinking of using the media to have interviews about the Commission. It is considering webinars to discuss the work of the Commission.

Psychiatric patients
The Commission is meant to visit all detention facilities. It has visited these facilities, but he thanks the Chairperson for the question as people with psychiatric problems tending to fall through the cracks.

Savings as a result of COVID-19
The Commission is working on revising its budget allocations.

Impact litigation
The Commission found it more useful to talk to groups. Generally speaking, members of the General Council of the Bar are not willing to do things pro-bono. With the Legal Practice Act, the Commission realises it needs to look at some of the provisions about pro-bono work to gain some leverage with the Bar.

Written response to the UNHRC
Prof Majola asked if he could respond in writing.

National Coronavirus Command Council (NCCC)
In general, the Council has been responsive. There was one instance where Prof Majola could not contact the NCCC head but he was eventually able to do so.

List of unresponsive departments
The Commission will send a list in writing to the Committee.

Chairperson’s closing comments
He reflected that the Committee does not support the cutting of the baseline budget of Chapter 9 institutions. However, we need to be creative in trying to extend the little rands that SAHRC has as the state is really overstretched. The Commission must leverage collaborations amongst departments. Overall, the discussion had been very fruitful, especially in response to COVID-19. The Committee looks forward to receiving the SAHRC detailed written reports. The issue of non-responsiveness is a very serious issue as it would go against the grain of the Constitution. He thanked the Committee for fruitful engagement.

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