report of the ad hoc committee on the and associated ...supporting constitutional democracy as...

Report of the ad hocCommittee on theReview of Chapter 9and AssociatedInstitutions

A report to the National

Assembly of the Parliament of

South Africa

31 July 2007

Members of the Committee: Hon Prof AK Asmal, Chairperson, (ANC), Hon MrS L Dithebe, (ANC), Hon Ms C Johnson, (ANC),Hon Adv T M Masutha, (ANC) - replaced by HonMr C V Burgess, (ANC), Hon Mrs M J JMatsomela, (ANC), Hon Dr J T Delport, (DA) –replaced by Hon S M Camerer (DA), Hon Ms MSmuts, (DA), Hon Mr J H van der Merwe, (IFP),Hon Mrs S Rajbally, (MF), Hon Mr S Simmons,(UPSA)

Suggested citation: Parliament of the Republic ofSouth Africa (2007). Report of the ad hocCommittee on the Review of Chapter 9 andAssociated Institutions. A report to the NationalAssembly of the Parliament of South Africa, CapeTown, South Africa

Website: www.parliament.gov.za

ISBN: 978-0-620-39323-2

© 2007, Parliament of the Republic of South Africa

Foreword v

Executive summary viii

Chapter 1 Context 2

Introduction 3Approach and methodology 5Guiding Principles 9Conclusion 17

Chapter 2 Common Issues and KeyRecommendations 18

Financial matters and budget allocations 19Appointments 21Relationship with Parliament 26Institutional governance arrangements 32Accessibility 35A single human rights body 37

Chapter 3 The Electoral Commission 42

Background 43Constitutional and legal mandate 43Findings 45General conclusions 50Recommendations 51

Chapter 4 The Financial and FiscalCommission 54

Background 55Constitutional and legal mandate 55Findings 56

General conclusions 63Recommendations 63

Chapter 5 The Auditor-General 66


Chapter 6 The Public Service Commission 80


Chapter 7 The Public Protector 94


Chapter 8 The National Youth Commission 108

Background 109Constitutional and legal mandate 110

ii

TABLE OF CONTENTS

Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

Findings 110General conclusions 116Recommendations 116

Chapter 9 The Pan South African LanguageBoard 118


Chapter 10 The Commission for thePromotion and Protection of the Rightsof Cultural, Religious and LinguisticCommunities 132


Chapter 11 The Commission for Gender Equality 146


Chapter 12 The Human Rights Commission 166

Background 167

Constitutional and legal mandate 167Findings 171General conclusions 184Recommendations 185

Chapter 13 The Independent Communications Authority of South Africa 188


Chapter 14 Conclusion 204

Annexures

Selected Constitutional provisions 206Table 1. Comparison of provisionsrelating to appointment to and removal from office, as well as remuneration and conditions of service of office bearers 219Table 2. Membership, date of appointment and expiry of office 228List of Chapter 9 and other statutory institutions in which the National Assembly has a roleto play 232Terms of reference 236Questionnaire 240List of submissions and representations 244Report on the Public opinion survey 248

iiiA REPORT TO THE NATIONAL ASSEMBLY 2007

C O N T E N T S

REPORT OF THE ad hoc COMMITTEEON THE REVIEW OF CHAPTER 9 AND

ASSOCIATED INSTITUTIONS

It is an honour to present to the NationalAssembly the outcome of an intensive, robustand comprehensive process engaged in by theCommittee in carrying out its assigned task.This report on the Review of Chapter 9 andAssociated Institutions documents the first everparliamentary review of a set of institutionsthat are at the core of consolidating, growingand sustaining our hard-fought democracy.

The individual and collective experiences andwisdom of the Members enriched and invigor-ated our discussions. While maintaining thenecessary respect for the independence anddignity of the institutions, Members askedprobing and sometimes difficult questions thatallowed us to present our findings and recom-mendations with confidence and conviction.

The work of the Committee would have beendifficult without the team of dedicated supportstaff assigned by the Speaker. These energeticand enthusiastic professionals provided secre-tarial, research and legal support that enabledthe Committee to complete its work successful-ly with the minimum amount of disruption. Inparticular, the Committee would like to thankthe core report-drafting team who werecharged with organising, processing andanalysing the large volume of informationreceived and distilling the key issues for theattention of the National Assembly. TheCommittee also appreciates the assistance oftwo external consultants in the drafting andediting of the report.

The Committee feels that the report would beof interest to six main constituencies, in noorder of importance or preference:

• The eleven institutions reviewed. It ishoped that the institutions will use the infor-mation, particularly the recommendations,

presented in the report for the primary pur-pose of strengthening the institutions andenhancing their efficiency and effectiveness.

• Members of Parliament. IndividualMembers of Parliament should look at theelements of the report relating to ways inwhich their individual and collective over-sight work could be conducted more effec-tively to further support and improve theinstitutions reviewed. In particular, theinteraction of Members of Parliament withcitizens during their constituency workbecomes critical in increasing citizens’access to information and services of theinstitutions.

• The public. The general public should takea keen and active interest in the contents ofthe report because the institutions reviewedwere designed to protect, promote andenhance the rights of citizens. The institu-tions are expected to assist people to vindi-cate their rights. The effectiveness and effi-ciency with which the institutions dischargetheir duties have a direct bearing on thequality of life of all South Africans, but par-ticularly the poor, marginalised, rural andpreviously disenfranchised.

• The Executive. The Executive initiated thisreview and then referred it to the NationalAssembly. As many of the recommenda-tions have direct relevance for the Executive,it is important that there should be engage-ment between the Executive and Parliamenton the substance of the recommendationsand the approach that Parliament wouldtake in ensuring their implementation andmonitoring.

• The National Assembly and Parliament.The report was agreed to unanimously by

vA REPORT TO THE NATIONAL ASSEMBLY 2007

FOREWORD

F O R E W O R D

the Committee and is hereby presented tothe National Assembly for its consideration.If adopted, it is respectfully suggested thatthe National Assembly and Parliamentshould determine a programme of action toensure the implementation and monitoringof the recommendations as adopted. Itwould be important for Parliament toaddress the Executive in determining its pro-gramme of action, and in particular to con-sult on how the Executive, on its side, wish-es to address the matters raised in thereport.

• The media. The media may be expected toplay an enormously important role not onlyin popularising the content of this report andproviding critique and analysis, but also indrawing attention to the work and the con-stitutional obligations of the institutionsreviewed (and all other organs of state).

A historic duty rests with the NationalAssembly to address the issues raised in thereport. This important challenge for theNational Assembly, and for Parliament, comesat the right time when there is a high degreeof interest in the institutions reviewed.

The report begins with a brief introduction on

the context of the Committee’s brief, the estab-lishment of the institutions reviewed and theapproach and methodology adopted by theCommittee. It then elaborates a set of princi-ples that guided the work of the Committee,and discusses the issues that were consideredgeneric to all the institutions reviewed andpresents key recommendations in this regard.The report then discusses each institution indetail and makes specific recommendations foreach institution.

The Committee commends this report to theNational Assembly.

Hon Prof AK Asmal, Chairperson, (ANC)Hon Mr S L Dithebe, (ANC)Hon Ms C Johnson, (ANC)Hon Adv T M Masutha, (ANC), replaced by HonMr C V Burgess, (ANC)Hon Mrs M J J Matsomela, (ANC)Hon Dr J T Delport, (DA), replaced by Hon MsSM Camerer (DA)Hon Ms M Smuts, (DA)Hon Mr J H van der Merwe, (IFP)Hon Mrs S Rajbally, (MF)Hon Mr S Simmons, (UPSA)

31 July 2007National Assembly, Cape Town

vi Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

viiA REPORT TO THE NATIONAL ASSEMBLY 2007

F O R E W O R D

EXECUTIVE SUMMARY

1. Background to review

With the advent of democracy in South Africa in1994, a human rights culture was made thecornerstone of the new constitutional dispensa-tion and a wide-ranging set of human rights,including socio-economic rights, was inscribedin a Bill of Rights and incorporated in theInterim Constitution of 1993 and repeated inthe final Constitution of 1996.

From the outset the leadership in South Africawas determined that those rights would notjust remain rights on paper, but would beactively realised, promoted and entrenched inthe interests of all the people and particularlyof the poor and the marginalised and thosewhose human rights had been consistently vio-lated and abused for generations. The objectwas the complete transformation of our societyfrom a culture that was oppressive, secretiveand profoundly disrespectful of basic humanrights into a human rights based culture inwhich the human dignity of all is both respect-ed and celebrated.

In order to achieve this goal, a range of institu-tions were established in the Constitution itselfand in national legislation, the purpose ofwhich was to strengthen constitutional democ-racy in South Africa by the active promotion ofa culture of human rights and the protection,development and attainment of those rights,including monitoring and assessing their imple-mentation and observance. Each of the institu-tions was meant to focus on a particular sectorof society where the need for transformationwas felt to be greatest. Reflecting the govern-ment’s determination to achieve this transfor-mation, these institutions uniquely were madeindependent of government so that they couldexercise their powers and perform their vitalfunctions without fear, favour or prejudice,

being accountable only and directly to the peo-ple’s democratically elected representatives inthe National Assembly.

Ten years into the new democracy, the govern-ment thought it was opportune to assess theextent to which society had been transformedand human rights entrenched through theoperation of these institutions. Such a reviewwould identify their effectiveness and rele-vance, individually and collectively, and therequirements to strengthen them further toensure that they were best able to achievetheir objectives.

2. Appointment of Committee

As the institutions had specifically been madeindependent of government, the Executive feltit to be inappropriate for it to undertake such areview itself and therefore requested theNational Assembly to conduct a review.Accordingly, the National Assembly on 21September 2006 by resolution appointed amulti-party ad hoc committee for this purpose.

The Committee, which was to report by 30 June2007, a date subsequently extended to 31 July2007, was given detailed terms of reference.It was required to review the state institutionssupporting constitutional democracy as listed inChapter 9 of the Constitution (the so-calledChapter 9 institutions) as well as the PublicService Commission as established in Chapter10 for the purpose, in the first instance, ofbroadly assessing whether the current andintended constitutional and legal mandates ofthese institutions are suitable for the SouthAfrican environment, whether the consumptionof resources by them is justified in relation totheir outputs and contribution to democracy,and whether a rationalisation of function, role

ixA REPORT TO THE NATIONAL ASSEMBLY 2007

EXECUTIVE SUMMARY

E X E C U T I V E S U M M A R Y

or organisation is desirable or will diminish thefocus on important areas. The Committee wasfurther also to conduct its review with refer-ence to other organs of state of a similar naturewhose work related closely to the work of theaforementioned institutions.

Turning to the individual institutions, theCommittee was also specifically tasked with –

• reviewing the appropriateness of theappointment and employment arrange-ments for commissions and their secretari-ats with a view to enhanced consistency,coherence, accountability and affordability;

• reviewing institutional governance arrange-ments in order to develop a model of inter-nal accountability and efficiency;

• improving the co-ordination of workbetween the institutions covered in thisreview, as well as improving co-ordinationand co-operation with government and civilsociety;

• recognising the need for a more structuredoversight role by Parliament in the contextof their independence; and

• reviewing the funding models of the institu-tions, including funding derived from trans-fers and licences and other fees, with a viewto improving accountability, independenceand efficiency.

3. Institutions reviewed

The Committee in accordance with its terms ofreference conducted a review of the Chapter 9institutions, namely the Public Protector, theHuman Rights Commission, the Commission for

the Promotion and Protection of the Rights ofCultural, Religious and Linguistic Communities,the Commission for Gender Equality, theAuditor-General and the Electoral Commission,as well as the Public Service Commission.

In addition, the Committee included in its reviewthe Pan South African Language Board, theFinancial and Fiscal Commission, theIndependent Communications Authority of SouthAfrica and the National Youth Commission. All ofthese, with the exception of the last-mentioned,are covered in the Constitution itself and enjoyspecial status. All eleven are in their differentspheres engaged in strengthening the fabric ofour constitutional arrangements.

These institutions were established at differenttimes and are at different stages of develop-ment. The Committee took this into account.

4. Approach and methodology

The approach and methodology of theCommittee are set out in detail in Chapter 1 ofthis report. The Committee engaged extensive-ly with the relevant institutions themselves,relevant Ministries and departments, relevantparliamentary committees and the public andcivil society. The Committee also commis-sioned a public opinion survey, based on aquestionnaire developed by it, to get a generalsense of public awareness of the institutions.

In order to ensure consistency in theCommittee’s approach to its work, it elaborateda range of guiding principles and criteriaagainst which the institutions were measured,namely the aspects guaranteeing their inde-pendence, accountability mechanisms andpractices, and the effectiveness of the institu-tions. All of these were examined within the

x Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

framework of the indivisibility, interdepend-ence and interrelatedness of human rights.

Each of the institutions was examined inrespect of its constitutional and legal mandateand the institution’s understanding and inter-pretation of that mandate; its powers and func-tions; appointment procedures for office-bear-ers; public awareness of the institution; its rela-tionship with Parliament, the Executive, and(other) Chapter 9 and associated institutions; itsinstitutional governance arrangements; and itsfinancial arrangements. A separate chapter inthe report is accordingly devoted to each insti-tution in which these issues are reported on indetail, which is followed by general conclusionsand findings, and recommendations specific tothe institution aimed at resolving identifiedproblems and shortcomings and generallystrengthening the institution.

5. Findings and recommenda-tions on common issues

Pursuant to its mandate to assess in broadterms whether the current and intended legalmandates of the institutions are suitable for theSouth African environment, whether their con-sumption of resources is justified in relation totheir outputs and contribution to democracyand whether a rationalisation of function, roleor organization is desirable or will diminish thefocus on important areas, the Committee inChapter 2 examines a range of broad issues inrespect of which common difficulties and lackof consistency and coherence in approach wereidentified. The Committee then, in this all-important Chapter, makes fully motivated find-ings and recommendations, which respond toits broad mandate on these issues. The find-ings and recommendations can be summarisedin outline as follows:

5.1. FINANCIAL MATTERS AND BUDGET ALLOCATIONS

Noting that the different institutions follow dif-ferent and inconsistent funding processes andrecognising that their financial independence isan important indicator of their true independ-ence, the Committee recommends that theirbudgets should be contained in a separate pro-gramme in Parliament’s Budget Vote, therequired processes to this end to be negotiatedwith National Treasury.

5.2. APPOINTMENTS

Allowing for variation depending on the differ-ent mandates, powers and functions of theinstitutions, a reasonable degree of consistencyin appointments is required and appointmentprocedures should be consistent with upholdingand protecting the independence of these insti-tutions. Specifically –

• selection criteria should be adjusted;• the role of Ministers in appointments should

be removed;• appointments should be staggered to

enhance continuity;• chairpersons should be appointed either by

the institutions themselves or by the rele-vant parliamentary committee; and

• public involvement in appointment process-es should be enhanced.

5.3. RELATIONSHIP WITH PARLIAMENT

The Committee notes that the institutions areaccountable to the National Assembly, butstresses that they also complement and aresupportive of Parliament’s oversight function.The Committee examines both aspects of theinstitutions’ interaction with Parliament and

xiA REPORT TO THE NATIONAL ASSEMBLY 2007


finds that Parliament’s engagement with theinstitutions currently is wholly inadequate.Recommendations are made to effect improve-ments. In particular, a unit on constitutionalinstitutions and other statutory bodies shouldbe set up in the office of the Speaker to co-ordi-nate all interactions with these institutions, andthe capacity of portfolio committees to engagewith substantive reports of these institutionsshould be significantly enhanced.

5.4. INSTITUTIONAL GOVERNANCEARRANGEMENTS

The Committee finds that internal tensionshave been experienced in most of the institu-tions. This is often the result of the absence ofclear lines of authority between the membersof the institution, its head and the secretariat.The Committee recommends that enabling leg-islation be reviewed to clarify lines of authoritywhere necessary.

The Committee finds further that there is nouniformity concerning the determination of theremuneration and conditions of service of themembers of the institutions. However, section219(5) of the Constitution provides for theestablishment of a framework by national leg-islation for determining these. Such legislationshould be adopted urgently and be made appli-cable to all the affected institutions. This couldpossibly be achieved by amending theIndependent Commission for the Remunerationof Public Office-Bearers Act.

Present arrangements for the regulation of con-flicts of interest differ widely between the insti-tutions. The Committee recommends that theenabling legislation should be amended to pro-vide a coherent and comprehensive frameworkis this regard.

5.5. ACCESSIBILITY

The Committee finds that the institutions arelargely urban-based and recommends that theyshould be innovative to ensure they becomemore accessible to the public, especially in ruralareas. At the same time, it could not confirmthe usefulness of provincial offices where suchhave been established and holds that suchoffices should be established only where ademonstrable need can be shown.

5.6. A SINGLE HUMAN RIGHTS BODY

The Committee finds that the multiplicity ofinstitutions created to protect and promote therights of specific constituencies in South Africahas in practice resulted in an uneven spread ofavailable resources and capacities, with impli-cations for effectiveness and efficiency. Thishas created fragmentation, confounding theintention that these institutions should supportthe seamless application of the Bill of Rights.

The Committee therefore proposes the estab-lishment of an umbrella human rights body tobe called the South African Commission onHuman Rights and Equality, into which theNational Youth Commission, the Commissionfor the Promotion and Protection of Cultural,Religious and Linguistic Communities (togetherwith the Pan South African Language Board)and the Commission for Gender Equality shouldbe incorporated together with the HumanRights Commission.

The Committee accepts that this process ofamalgamation will neither be easy nor speedy,but it should be finalised within a reasonabletime. It therefore recommends that as a firststep a task team be set up consisting of theheads of the relevant institutions and a numberof members of the National Assembly to pro-

xii Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

duce a roadmap to guide the process, the taskteam to report to the National Assembly with-in 12 months.

6. Findings and recommenda-tions on individual institu-tions

In the context of the Committee’s findings andrecommendations on identified issues commonto all the institutions under review and the pro-posed establishment of an umbrella humanrights commission in the medium term, theCommittee in separate chapters examines andmakes findings and recommendations on theindividual institutions with a view to resolvingspecific problems and generally strengtheningtheir effectiveness and efficiency. These wouldbe interim and immediate measures in thecase of those institutions, which would in duecourse be amalgamated into the umbrellabody.

The full findings and recommendations aredetailed in the respective chapters. For purpos-es of this summary a few are highlighted:

1. Co-ordination and co-operation between theinstitutions in a revived Forum ofIndependent Statutory Bodies should beactively encouraged.

2. Relevant institutions should publish thenumber, nature and outcomes of complaintsthey have received. Where complaints arereferred to another body, progress should betracked.

3. The legal mandate for engagement in inter-national work, where applicable, should beclarified.

4. Codes of conduct and registers of financialinterest should be kept and be made acces-sible.

5. Innovative ways must be found to promotepublic awareness of the respective institu-tions.

6. The failure of state departments and otherorgans of state to respond to recommenda-tions made by the respective institutionsshould be pertinently brought to the atten-tion of Parliament.

7. Motivated recommendations are made toalter the composition of specified institu-tions.

8. Formal agreements should be entered intobetween relevant institutions to prevent anypossibility of duplication or overlap of func-tions.

9. The institutions need to develop strategiesto attract and retain staff.

10. The National Youth Commission’s mandateshould be widened to encompass both chil-dren and the youth.

11.Concerning the Pan South African LanguageBoard, its lexicography units should betransferred to the Department of Arts andCulture, and the Board itself should be incor-porated in the Commission for thePromotion and Protection of the Rights ofCultural, Religious and Linguistic Com-muni-ties as a joint activity in a relatively shortperiod. According to legal advice this couldbe achieved without necessarily amendingthe Constitution.

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12.For purposes of ensuring a smooth transitionto a consolidated body, the Committee rec-ommends that a task team be set up con-sisting of three members of each of theaffected bodies together with six membersof the National Assembly, preferably fromthe relevant portfolio committee. The taskteam should report within 12 months.

13.Regarding the Commission for the Pro-motion and Protection of Cultural, Religiousand Linguistic Communities, see the recom-mendation above relating to the Pan SouthAfrican Language Board.

14. The Commission on Gender Equality Act,which is out of date, should be amended assoon as possible to bring it into line with theConstitution.

15. For purposes of coherence and consistency,the oversight and accountability of theCommission for Gender Equality should belocated with the National Assembly compo-nent of the Joint Monitoring Committee onImprovement of Quality of Life and Status ofWomen, which should for that purpose alsobe formalised in the Assembly rules as aseparate committee of the Assembly.

16.Concerning the Human Rights Commission,pending the establishment of the proposedumbrella human rights commission theDepartment of Justice and Constitutional

Development should without delay intro-duce amending legislation to bring theHuman Rights Commission Act into line withthe Constitution and in the process makeprovision for other specified issues.

17. Further, Parliament should initiate thespeedy appointment of at least two moreCommissioners to the Human Rights Com-mission, one of whom should be designatedto deal with the rights of disabled personsand the other with the right of access toinformation.

18. The Independent Communications Authorityof South Africa Act should be amended tomake the President rather than the relevantMinister responsible for the appointment ofCouncillors. Other specified issues shouldalso be covered in the amending legislation.

7. Conclusion

The Committee expresses the hope that theinstitutions that have been reviewed will usethe information contained in this report, andparticularly the detailed recommendations, forthe primary purpose of strengthening them andenhancing their efficiency and effectiveness.

The Committee agreed to the report unani-mously.

xiv Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

1A REPORT TO THE NATIONAL ASSEMBLY 2007


CHAPTER 1

1. Introduction

Emerging from a racially divided and oppressivepast, where basic human rights were violated inthe extreme by an illegitimate government thatfailed to honour even the most basic tenets ofthe rule of law, South Africa crafted a Consti-tution that is unique and far reaching in its pro-visions. Amongst others, it established an arrayof constitutionally protected institutions createdto strengthen democracy and to promoterespect for human rights in our society.

The new, democratically elected governmentinherited a state, which was farcically bureau-cratic, secretive and unresponsive to the basicneeds of the majority of its citizens. Most ofthe state institutions had little or no credibilityand were profoundly distrusted by the majorityof the people.

For some constitutional negotiators it wastherefore clear that in order to transform SouthAfrican society from an intensely oppressivesociety into an open and democratic societybased on human dignity, equality and freedomwould require more than a change in the sys-tem of government. It would be necessary tocreate a set of credibly independent institutionswhose task it would be to strengthen constitu-tional democracy.

It was envisaged that these independent insti-tutions would support constitutional democracybecause they would, amongst others, help to:

1. Restore the credibility of the state and itsinstitutions in the eyes of the majority of itscitizens;

2. Ensure that democracy and the values asso-ciated with human rights and democracyflourished in the new dispensation;

3. Ensure the successful re-establishment of,and continued respect for, the rule of law;and

4. Ensure that the state became more openand responsive to the needs of its citizensand more respectful of their rights;

Many civil society groups who had come to dis-trust the apartheid State and its institutionsmore broadly or who were eager to see newinstitutions emerge that would be tasked toattend to the particular concerns of con-stituents, strongly advocated for the establish-ment of independent institutions that wouldlook after their particular concerns about, forexample, language rights, gender rights orhuman rights in general.

At the time, a widely shared belief emergedthat at least some of these institutions werenecessary to enhance democracy and, moreimportantly, to empower the citizens of SouthAfrica. Many South Africans are poor and mar-ginalised and will not be able to enforce theirrights without assistance from independentbodies such as those established by theConstitution. These institutions are of funda-mental importance to democracy exactlybecause they have been empowered to act onbehalf of those who would not otherwise gainaccess to courts or other mechanisms forenforcing their rights.

To guarantee their independence and protec-tion from undue influence and interference, theconstitutional negotiators deemed it appropri-ate to afford these institutions maximum pro-tection by providing for their establishment andindependence under the Constitution. To thatend Chapter 9 of the Constitution establishedsix key institutions, the Public Protector, the

3CONTEXT

CHAPTER 1

CONTEXT

C H A P T E R 1

South African Human Rights Commission, theCommission for Gender Equality, the Auditor-General, the Electoral Commission and theCommission for the Promotion and Protectionof the Rights of Cultural, Religious and LinguisticCommunities to strengthen constitutionaldemocracy in South Africa. Our Constitutionalso makes provision for the establishment ofan independent authority to regulate broad-casting in Chapter 9. Certain other related insti-tutions, such as the Public Service Commissionand the Financial and Fiscal Commission andthe Pan South African Language Board wereestablished in other Chapters of theConstitution.

These institutions have come to play a vital rolein the development and consolidation ofdemocracy in South Africa. Yet, almost as atestimony to the robustness of the developingSouth African democracy and the enormousexpectations of a liberated South African socie-ty, these institutions have been the subject ofcriticism by politicians and civil society, includ-ing the media.

Nine years after the adoption of the finalConstitution and ten years after the attainmentof democracy in South Africa, the Executiveconsidered it necessary to evaluate theprogress made towards the consolidation ofdemocracy and the promotion and protectionof constitutional rights, values and principles inSouth Africa.

As part of this national process, the Govern-ment recognised the necessity to review theeffectiveness and relevance of the institutionscreated during the constitution-making processto gain a better understanding of how theycould be further assisted and supported with aview to strengthening them. Cabinet thereforetasked the Minister of Public Service and

Administration in February 2005 with conduct-ing a review of Chapter 9 institutions and thePublic Service Commission.

The correct location of this review received par-ticular attention early in the review process,given the constitutionally guaranteed inde-pendence of these institutions. It soon becameclear that it was not the Executive but theNational Assembly of Parliament, which wasthe appropriate body to conduct such a review.Section 181(5) specifically states “these institu-tions are accountable to the National Assembly,and must report on their activities and the per-formance of their functions to the Assembly atleast once a year”. It was therefore appropriatethat the National Assembly should undertakethe task of reviewing these institutions. TheConstitution in fact compels the NationalAssembly to do so. Therefore on 18 July 2006the Cabinet Committee on Governance andAdministration recommended that Parliamentconduct the review.

Section 181(3) of the Constitution requires allother organs of state to assist and protect theseinstitutions and to ensure their independence,impartiality, dignity and effectiveness and theExecutive initiated the review process, in part,to give effect to these constitutional duties.

As a result, on 21 September 2006, theNational Assembly adopted a resolution estab-lishing an ad hoc committee to review Stateinstitutions supporting constitutional democra-cy (the so-called “Chapter 9” institutions) andthe Public Service Commission established inChapter 10 of the Constitution.

1

The resolutionincluded terms of reference mandating theCommittee to review these institutions, for thepurpose of:

4 Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions

1 Composition of the ad hoc Committee: Members: Hon. Prof. Kader Asmal (Chairperson), Hon. Mr S L Dithebe, Hon. Ms C Johnson, Hon. Adv T M Masutha- replaced by Hon. Mr C V Burgess, Hon. Mrs M J J Matsomela, Hon. Dr J T Delport – replaced by Hon. Ms SM Camerer, Hon. Ms M Smuts, Hon. Mr J Hvan der Merwe, Hon. Mrs S Rajbally, Hon. Mr S Simmons. Parliamentary support staff: Dr. L Gabriel, Mr. M Philander, Ms. C Silkstone, Mr. T Molukanele,Adv A Gordon (Adv M Vassen as alternate), Ms. T Sepanya, Ms. L Monethi, Ms. J Adriaans, Mr T Schumann, Mr E Nevondo. Additional technical supportstaff: Prof. P De Vos (UWC), Mr. A Kamieth (intern), Mr. K Hahndiek (former Secretary to the National Assembly)

1. Assessing whether the current and intendedconstitutional and legal mandates of theseinstitutions are suitable for the South Africanenvironment, whether the consumption ofresources by them is justified in relation totheir outputs and contribution to democracy,and whether a rationalisation of function,role or organisation is desirable or willdiminish the focus on important areas;

2. Reviewing the appropriateness of theappointment and employment arrange-ments for commissions and their secretari-ats with a view to enhanced consistency,coherence, accountability and affordability;

3. Reviewing institutional governance arrange-ments in order to develop a model of inter-nal accountability and efficiency;

4. Improving the co-ordination of work betweenthe institutions covered in this review, as wellas improving co-ordination and co-operationwith government and civil society;

5. Recognising the need for a more structuredoversight role by Parliament in the contextof their independence; and

6. Reviewing the funding models of the institu-tions, including funding derived from trans-fers and licences and other fees, with a viewto improving accountability, independenceand efficiency.

The Committee was also authorised to conductits review with reference to other organs ofstate of a similar nature whose work was close-ly related to the work of the institutions specif-ically mentioned in the resolution.

At its first meeting on 10 October 2006 theCommittee therefore decided that in addition to

the Public Protector, the South African HumanRights Commission, the Commission for thePromotion and Protection of the Rights ofCultural, Religious and Linguistic Communities,the Commission for Gender Equality, theAuditor-General, the Electoral Commissionreferred to in Chapter 9 of the Constitution andthe Public Service Commission referred to inChapter 10 of the Constitution it would includein its review the Pan South African LanguageBoard established in Chapter 1 of the Consti-tution, the Financial and Fiscal Commissionreferred to in Chapter 13 of the Constitution,the Independent Communications Authority ofSouth Africa also covered in Chapter 9 of theConstitution and the National YouthCommission. The review therefore covered 11institutions in all.

For ease of reference, the Committee agreed tobe officially referred to as the ad hocCommittee on the Review of Chapter 9 andAssociated Institutions.

The Committee was required to submit itsreport to the National Assembly by 30 June2007. This was subsequently extended to 31July 2007. The Terms of Reference are con-tained in annexure 4 of this report.

The Committee elected Professor Kader Asmalas Chairperson.

2. Approach and Methodology

2.1. APPROACH

Given the national importance of the review andthe public interest in the institutions under review,the Committee placed great emphasis on devisinga methodology and approach that would max-imise public input and awareness of its work.

5CONTEXT

C H A P T E R 1

Engagement with the institutions themselveswas considered to be necessary and a priority.It was considered important that there was ashared understanding and appreciation of theterms of reference of the Committee betweenthe Committee and the institutions underreview, amongst the institutions themselvesand amongst the public at large. The Committeeaccordingly commenced its work with a meet-ing with the heads of the eleven institutions.The Committee highlighted the fact that itsreview would focus specifically on the institu-tional matters and political considerations spec-ified in the terms of reference. The institutionsall pledged their collaboration with theCommittee and support for the review process.

In formulating an approach to its work, theCommittee emphasised the following key con-siderations:

1. With the exception of the National YouthCommission all institutions under reviewwere products of the constitution-makingprocess and therefore the relevant provi-sions of the Constitution, read together withthe terms of reference of the Committee,should be the point of departure for thedeliberations and recommendations.

2. Given the major challenges facing the devel-opmental state, the Committee agreed thateven thirteen years after the advent of thenew constitutional order, the work done bythe various institutions was vital for deepen-ing democracy and promoting a human rightsculture in South Africa. Emphasis would thusbe placed on whether the institutions wereeffective in fulfilling their mandates. Wherethey were not, remedial action to ensure thatthe laudable and important goals set forthese institutions would be achieved in acost-effective, efficient and people-centredmanner would be recommended.

3. The institutions are at different stages ofdevelopment due largely to them beingestablished at different times.

4. Each institution fulfilled a different functionand no two institutions could be said to haveexactly the same constitutional status. TheCommittee therefore wishes to underscorethe fact that the institutions had each to betreated according to its particular merits.

5. Distinction could be drawn, for example,between institutions that strengthen constitu-tional democracy through the promotion andprotection of human rights, and the investiga-tion and settlement of complaints regardingthe violation of these rights, such as theHuman Rights Commission, the Commissionfor Gender Equality and the Pan South AfricanLanguage Board and those whose purposelies in occupying key democratic institutionalpositions and fulfilling fundamental demo-cratic roles and functions, such as the Auditor-General, the Electoral Commission and theFinancial and Fiscal Commission.

6. In crafting recommendations, a focus onstrengthening the institutions should beparamount. In forwarding recommenda-tions for immediate consideration, theCommittee recognised the challenge forParliament in amending legislation. How-ever some of the Acts pertaining to theinstitutions are out of date and do not accu-rately reflect the constitutional order.

7. The Committee feels that constitutionalamendments should be avoided. Recom-mendations requiring constitutional amend-ments and/or radical institutional reorgani-sation should be considered for futureimplementation.


8. Public participation processes should ensureas much public access and opportunity forinput into the work of the Committee as ispossible.

2.2. METHODOLOGY

2.2.1. Engagement with institutions underreview

To ensure the completeness of informationreceived from the institutions under review, theCommittee developed a questionnaire basedon its terms of reference. The questionnaireconsisted of 25 questions organised into fivesections: the role and functions of the institu-tions, their relationships with other bodies,institutional governance, their interaction withthe public, and financial and other resourcematters. A copy of the questionnaire is pre-sented in annexure 5 of this report.

On 20 October 2006 the Committee met withthe heads of all institutions under review toapprise them of the terms of reference of theCommittee and to inform them about adminis-trative aspects of the questionnaire. TheCommittee commends the institutions for sub-mitting their responses to the questionnairewithin the stipulated deadline.

Responses to the questionnaire, annual reportsof the institutions, special reports published bythe institutions, media reports, public submis-sions and submissions from civil society organ-isations formed the basis of interactionsbetween the Committee and individual institu-tions held between 24 January and 14 March2007. During these encounters, the Committeerequested the institutions to clarify further cer-tain aspects of the matters raised in theirresponses to the questionnaire since some ofthe reports appeared to be too general. The

Institutions were also afforded the opportunityto inform the Committee of any relevant infor-mation that might not in their view have beenadequately covered in the questionnaire.

The Committee invited the institutions to makesupplementary written submissions where nec-essary.

The Committee was pleased to note the interestof Members of Parliament in its interactions withthe institutions under review. Chair-persons ofthe Portfolio Committee on Justice andConstitutional Development, the Joint MonitoringCommittee on the Improvement of the Quality ofLife and Status of Women and the JointMonitoring Committee on the Improvement ofthe Quality of Life and Status of Children, Youthand Disabled Persons were present during theCommittee’s encounter with the National YouthCommission. The Chairperson of the StandingCommittee on the Auditor-General was presentand gave a presentation during the Committee’sencounter with the Auditor-General. The ActingChairperson and several members of thePortfolio Committee on Communications werepresent during the Committee’s encounter withthe Independent Communications Authority ofSouth Africa. Members of Parliament attendedthe Committee meeting with the Commissionfor Gender Equality.

2.2.2. Engagement with the public and civilsociety

During November and December 2006 andJanuary 2007, the Committee advertised forsubmissions from the public in various nationaland regional newspapers. Members of thepublic were invited to share their experiencesrelating to the institutions under review. TheCommittee received a number of submissionsfrom individuals.

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Furthermore, the Committee invited nearly 150civil society organisations, including groupsfocusing on human rights, labour and business,and academic and legal institutions to makewritten submissions. After consideration of thewritten submissions, the Committee invitedseveral civil society organisations and researchinstitutions to make oral submissions on theinstitutions under review.

In order to get a general sense of the extent ofpublic awareness of the institutions, theCommittee commissioned a research instituteto conduct a public opinion survey. The surveywas based on a questionnaire developed bythe Committee. The questionnaire was admin-istered to 2500 respondents nationally. Theoutcomes of the survey are presented in a fullreport contained in annexure 7 of this report.

2.2.3. Engagement with relevant Ministriesand Departments

The Committee addressed letters to the appro-priate Ministers, which were copied to the cor-responding Departments, to draw their atten-tion to the mandate of the Committee and toinvite written submissions on the institutionswith which they are associated. The followingMinistries were requested for information: Artsand Culture, Communications, Education,Finance, Home Affairs, Justice and Cons-titution-al Development, Minister in the Presidency,Provincial and Local Government and PublicService and Administration.

After consideration of the written submissionsreceived, the Committee invited the Ministersof Communications, of Finance and of Justiceand Constitutional Development to make oralsubmissions. The oral submissions to a lesseror greater extent covered matters such as theindependence of Chapter 9 and associated

institutions, the proposed funding model forChapter 9 and associated institutions, the roleof the directorate responsible for Chapter 9institutions in the Department of Justice andConstitutional Development and the proposedconstitutional and legislative amendmentsrelating to the Independent CommunicationsAuthority of South Africa.

2.2.4. Engagement with relevantParliamentary Committees

Letters were also sent to a number ofChairpersons of parliamentary committees toinvite them to submit written comment on theinstitutions. Information was requested fromthe following Committees: Portfolio Committeeon Arts and Culture, Portfolio Committee onCommunications, Portfolio Committee onEducation, Portfolio Committee on Finance,Portfolio Committee on Home Affairs, PortfolioCommittee on Justice and ConstitutionalDevelopment, Portfolio Committee on Pro-vin-cial and Local Government, Portfolio Committeeon Public Service and Administration, StandingCommittee on the Auditor-General, StandingCommittee on Public Accounts, Joint MonitoringCommittee on the Improvement of Quality ofLife and Status of Children, Youth and DisabledPersons, and Joint Monitoring Committee onthe Improvement of Quality of Life and Statusof Women.

The Chairperson of the Portfolio Committee onJustice and Constitutional Development and theChairperson of the Standing Committee on theAuditor-General were invited to make oral sub-missions to the Committee.

A full list of submissions is contained in annex-ure 8 of this report.


3. Guiding Principles

To ensure consistency in the approach of theCommittee to each institution, and to maintainits focus, it was necessary to identify a set ofguiding principles derived from the terms ofreference of the Committee, the relevant provi-sions of the Constitution including the authori-tative Constitutional Court interpretations ofsome of the Constitutional provisions and inter-national literature on related institutions.

These guidelines provided the framework with-in which the institutions were reviewed.

The Committee adopted the following guidingprinciples:

3.1. INDEPENDENCE

Sections 181, 191, 196 and 220 of theConstitution guarantee the independence ofmost of the institutions under review. Section181(2) furthermore provides that the Chapter 9institutions “must be impartial and must exer-cise their powers and perform their functionswithout fear, favour or prejudice”. Moreoversection 181(3) requires other organs of state to“assist and protect these institutions” to ensuretheir “independence, impartiality, dignity andeffectiveness”. Section 181(4) furthermorestates that “no person or organ of state mayinterfere with the functioning of these institu-tions”.

The Constitution also guarantees the independ-ence of other institutions, such as the PublicService Commission (section 196(2), (3)), theBroadcasting Authority (section 192) and theFinancial and Fiscal Commission (section 220(2)).

It is noteworthy that there is no explicit consti-tutional provision for the independence of the

Pan South African Language Board. The inde-pendence of the Board is provided for in the Actpertaining to the Board.

In the two Constitutional Court judgmentsdirectly dealing with Chapter 9 Institutions, andanother decision dealing with the concept ofindependence in more general terms, theConstitutional Court provided some helpfulguidelines for looking at the notion of inde-pendence of these institutions. These guide-lines have been duly factored in and arereferred to in greater detail below.

3.1.1. General test for independence

The Constitutional Court set out a general testthat could be used to judge the independenceof an institution in its judgement in Van Rooyenand Others v S and Others

2

. According to theConstitutional Court, the determining factor iswhether, from the objective standpoint of areasonable and informed person, there will bea perception that the institution enjoys theessential conditions of independence.

The judgement said that in determining inde-pendence consideration should be given to theperception of independence by a well-informedand objective person. Such person should beguided by the social realities of South Africaand the Constitution, particularly the valuescontained in the Constitution and the differen-tiation it makes between the different institu-tions.

The factors such an observer may look at todetermine whether an institution is independ-ent or not are: financial independence; institu-tional independence with respect to mattersdirectly related to the exercise of its constitu-tional mandate, especially relating to the insti-tution’s control over the administrative

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2 2002 (8) BCLR 810 (CC).

decisions that bear directly and immediately onthe exercise of its constitutional mandate;appointments procedures and security oftenure of appointed office-bearers.

3.1.2. Not part of government

The Constitutional Court pointed out inIndependent Electoral Commission v LangebergMunicipality

3

that, although a Chapter 9 institu-tion such as the Electoral Commission is anorgan of state as defined in section 239 of theConstitution, these institutions cannot be saidto be a department or an administration withinthe national sphere of government over whichCabinet exercises authority. These institutionsare state institutions and are not part of thegovernment. Independence of the institutionrefers to independence from the government.The Court could not agree that these institutionswould be subject to the constitutional provi-sions of co-operative government when theyare in fact independent from government.

4

This means that Chapter 9 institutions are not(Committee’s emphasis) subject to the co-oper-ative government provisions set out in Chapter3 of the Constitution. These institutions per-form their functions in terms of national legis-lation, but “are not subject to national execu-tive control”.

5

They are part of governance butnot part of government.

There is a need for these institutions to “mani-festly be seen to be outside government”(Committee’s emphasis). The judgement laysdown that a very clear and sharp distinctionmust be drawn between these institutions andthe Executive authority and no legislative provi-sion or action by the Executive that would cre-ate an impression that the institution is notmanifestly outside government would be con-stitutionally acceptable.

The relationship between Parliament and theinstitutions is different since they are account-able to the National Assembly. The independ-ence of the institutions must, however, bemaintained.

3.1.3. Organs of state must assist and respect

Another aspect of independence can be foundin section 181(3) which provides that otherorgans of state, through legislative and othermeasures, must assist and protect these institu-tions to ensure the independence, impartiality,dignity and effectiveness (Committee’s empha-sis) of these institutions and section 181(4)which states that no person or organ of statemay interfere (Committee’s emphasis) with thefunctioning of these institutions. Similar provi-sions for the Public Service Commission arecontained in section 196(3) of the Constitutionand are made in legislation pertaining to otherbodies such as the Independent Com-munica-tions Authority of South Africa.

From these provisions a few conclusions can bedrawn. Firstly, independence is not synony-mous with impartiality. Just because a body isable to exercise its duties impartially does notnecessarily mean that its independence hasbeen safeguarded. Independence is in essencea more encompassing concept than impartiali-ty. The specific aspects of independence areelaborated later in this chapter.

Secondly, other organs of state have a constitu-tional duty to ensure the dignity of the Chapter9 and Chapter 10 institutions. In various judg-ments dealing with dignity in other contextsthe Constitutional Court has argued that dignitywill be impaired when action sends a signalthat the institution is not worthy of respect. Thisdoes not mean institutions should not and can-


3 2001 (9) BCLR 883 (CC).4 Ibid. par 28-29.5 Ibid. Par 31.

not be criticised and subjected to questioning,but such questioning should be done with dueregard to the independence of these institu-tions.

Lastly, organs of state have a duty to ensure theeffectiveness of these institutions. This is doneas part of the accountability and oversightmechanisms established by Parliament andwithin the context of the independence of theinstitutions.

3.1.4. Financial independence

The Constitutional Court affirmed the basic prin-ciple that Chapter 9 and Chapter 10 institutionsmust have some degree of financial independ-ence in order to function independently and tobe able to exercise their duties without fear,favour or prejudice. At the same time theConstitutional Court made it clear that this didnot mean that these institutions could set theirown budgets. What was required was forParliament to provide a reasonable amount ofmoney that would enable the institutions tofulfil their constitutional and legal mandates. Itis important to note that this task is clearly oneto be exercised by Parliament. As the Courtindicated: “It is for Parliament, and not theexecutive arm of government (Committee’semphasis), to provide for funding reasonablysufficient to enable the [Chapter 9 institutions]to carry out [their] constitutional mandate.” TheCourt accepted that there would inevitably be atension between the government/Parliamenton the one side and the independent institu-tion(s) on the other about the reasonablenessof the amount of money to be provided toensure the effective fulfillment of its constitu-tional mandate. To determine the reasonableamount of money an institution requires is,however, easier said than done.

It is incumbent upon the parties to make everyeffort to resolve that tension and to reach anagreement by negotiation and acting in goodfaith. This, according to the Constitutional Court,would no doubt entail considerable meaningfuldiscussion, exchange of relevant information, agenuine attempt to understand the respectiveneeds and constraints and the mutual desire toreach a reasonable conclusion.

6

Hence, whenParliament engages in this process it must dealwith requests rationally, in the light also ofother national interests.

This means the institutions must be afforded anadequate opportunity to defend their budget-ary requirements before Parliament or its rele-vant committees. Thus “no member of theexecutive or the administration should have thepower to stop transfers of money to any inde-pendent constitutional body without the exis-tence of appropriate safeguards for the inde-pendence of that institution.”

In the light of the indication in the Treasurysubmission to the Committee of the NationalTreasury’s acceptance of the role of Parliamentin the determination of budgets, the Com-mit-tee will have to determine what mechanismsshould be put in place to ensure that the budg-et process safeguards the independence ofthese institutions.

3.1.5. Administrative independence

In the case of the NNP v Minister of HomeAffairs, the Constitutional Court laid down thatthe independent bodies supporting democracyrequire more than financial independence. Forthese institutions to operate independently andfor them to fulfill their respective tasks withoutfear, favour or prejudice, the ConstitutionalCourt said that the administrative independ-ence of these institutions should be safeguard-

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6 New National Party par 97.

ed. This implies that these institutions musthave control over those matters that are direct-ly connected with their functions under theConstitution and the relevant legislation.

No matter what arrangements Parliament orthe Executive might make, it is important thatthe institutions retain the ability to maintainoperational control over their core business.What is required, therefore, is that no sucharrangements should equate to interferencewith the constitutional mandate of the bodiesto perform their duties impartially.

In the New National Party case theConstitutional Court made it clear that section181(3) requires the Executive to engage withthe bodies in a manner that would ensure thatthe efficient functioning of the Commission isnot hampered.

The Constitutional Court further indicated that afailure on the part of the Executive to complywith such obligations “may seriously impair thefunctioning and effectiveness of those Stateinstitutions supporting constitutional democra-cy and cannot be condoned”. This means thatneither Parliament nor the Executive can inter-fere directly in the day-to-day running of theseinstitutions, can instruct the institutions on day-to-day matters regarding their programmesand implementation, or can get directlyinvolved in the employment or management ofstaff by these institutions.

At the same time Parliament and the Executivehave a duty to support these institutions and, ifinstitutional problems are of such magnitude orseriousness that they make it difficult or impos-sible for an institution to fulfill its constitutionaland legislative tasks, Parliament can - indeedmust - assist such institutions to resolve suchproblems. There was cause for such occasion in

July 2006 when Parliament appointed an adhoc Committee to resolve operational issuesarising from an alleged dispute within theoffice of the Public Protector.

Such assistance must not, however, have theeffect of removing control over matters directlyconnected with an institution’s functions andmust not hamper the efficient functioning ofthe institution.

In short, while Parliament and the Executivecan engage with these institutions to assistthem to improve their performance, they can-not do so in a way that would remove controlover the administration from the institutions orthat would result in interference in the func-tioning of these institutions.

The Constitutional Court referred to the fact thatthe Department of Home Affairs cannot tell theElectoral Commission how to conduct registra-tion, whom to employ, and so on. If the Com-mission asks the government to provide per-sonnel to assist in the registration process, gov-ernment must provide such assistance if it isable to do so. If not, the Commission must beprovided with adequate funds to enable it to dowhat is necessary.

At present, the institutions under review dis-play a wide array of arrangements regardingthe involvement of the Executive and/or Parlia-ment in their administration. For example, thePublic Protector and the Commission for GenderEquality must consult the Minister of Financewhen appointing staff. While this might be apractical measure related to confirmation offinancial resources, such arrangements shouldbe framed within the purview of the independ-ence of these bodies. This would avoid anyperception that these arrangements infringe onthe independence of these institutions.


Perhaps more serious is the example of thePublic Service Commission in respect of whichthe Minister of Public Service andAdministration has the power through legisla-tion to appoint the Director General of theCommission.

The possible effect of such administrativearrangements on the independence of thesebodies is unclear. Therefore, the Committeeconsidered whether such arrangements areappropriate and if not what other arrange-ments should be put in place to ensureaccountability without interfering with inde-pendence. This is discussed later in this report.

3.1.6. Independence andappointments/removals procedures

The general provisions in sections 193 and 194of the Constitution provide for the appointmentand removal of the Public Protector, theAuditor-General and the members of the vari-ous Commissions established in Chapter 9 ofthe Constitution. Similar provisions are made inChapter 10 for the Public Service Commissionand in Chapter 13 for the Financial and FiscalCommission.

When required to certify whether the proposedConstitution of 1996 met the provisions of thevalues of the Constitution identified in theConstitutional principles laid down in the 1993Constitution, the Constitutional Court found thatthe provision that would allow for a dismissalof the Auditor-General or the Public Protectorby a simple majority of the members of theNational Assembly did not comply with therequirements of independence, given the factthat the Auditor-General would act as a watch-dog over the government.

The appointment of the Auditor-General, the

Public Protector and the various Commissioners(with the exception of the Commission for thePromotion and Protection of the Rights ofCultural, Religious and Linguistic Communities)is assigned to a Committee of the NationalAssembly, proportionally composed of mem-bers of all parties represented in the Assembly.

7

This is mainly done through the establishmentof ad hoc Committees. The Committee feelsthat given the nature and composition of adhoc Committees and the specific knowledgerequired to effectively recommend appoint-ments to a Commission or other constitutionalbody, a more appropriate mechanism isrequired. Recommendations are made in thisregard later in this report.

The general provisions of the Constitution insection 193 do not specify the process for theappointment. However, section 193(6) readwith section 59(1)(a) provides for the facilita-tion of the involvement of civil society in therecommendation process. The Committee con-sidered whether the current practice of invitingcivil society bodies to nominate candidates issufficient or whether other practical and rea-sonable mechanisms should be devised toenhance the participation of civil society. TheCommittee makes a specific recommendationlater in this report as to how this could beachieved.

Regarding removal from office, it is importantto note that no general authority is in fact givento the National Assembly for the removal fromoffice of the Auditor-General, the PublicProtector or Commissioners. This can only bedone on objective grounds, including “miscon-duct, incapacity and incompetence”.

8

Thismeans that these office-holders cannot beremoved from office on any other ground with-out an amendment of the Constitution.

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7 Section 193(5).8 Section 19(1)(a), section 196(11)(a).

The Constitution does not contain any provi-sions for the appointment and dismissal ofmembers of the Independent BroadcastingAuthority that must be set up in terms of sec-tion 192 of the Constitution. The Constitution,section 192, does however require this author-ity to be independent and to act in the publicinterest.

Applying the general principle set out by theConstitutional Court, it is clear that members ofthe Authority should have some degree of pro-tection against dismissal if, from the objectivestandpoint of a reasonable and informed per-son, the perception is to be supported that theinstitution enjoys the essential conditions ofindependence as described earlier. At the veryleast this should require that members of theAuthority should not be subject to dismissal onnon-objective grounds relating to choices theyhave made, but only on objective criteria suchas incapacity, misconduct or incompetence.The 2000 Act provides for this.

It is interesting to note that in relation to thedismissals procedure the Constitution makes adistinction arising out of the nature and author-ity of the office. Regarding the Auditor-Generaland the Public Protector, the former requires a60% vote of the members of the NationalAssembly for removal from office and the latterrequires a simple majority. The Committeefeels that the same arrangements for theAuditor-General should also have been appliedto the Electoral Commission.

3.1.7 . Limits to independence

In Van Rooyen and Others v S and Others (aswell as in the First Certification Case), theConstitutional Court made it clear that therequirements of independence will not be the

same for all bodies whose independence isbeing guaranteed. Each institution should beapproached differently. This means that,depending on the nature and mandate of theinstitution; the stringency of the requirementsfor independence may differ. An institutiondealing with complaints against the legislatureand Executive such as the Public Protector willrequire more vigorous protection of its inde-pendence to ensure the legitimacy of the insti-tution in the eyes of the public.

Thus, some basic principles can be identified toestablish the minimum requirements for inde-pendence. As indicated earlier, there is a con-stitutional imperative for these institutions to beseen not to be part of government. Thus, anyinvolvement of the Executive in the daily oper-ations or institutional arrangements of an inde-pendent institution would be constitutionallyunacceptable. Even where the President isgiven a role like the power to appoint membersof the various commissions, this is a formal role.

The National Assembly is given the constitu-tional authority to deal with the independentinstitutions and has a constitutional duty tohold these institutions to account. Again, thisexcludes any interference in the daily opera-tions or institutional arrangements of theseinstitutions. Parliament can - and indeed has aconstitutional duty in this regard - enact legis-lation that will allow these institutions to fulfilltheir constitutional mandates in an effective(Committee’s emphasis) manner. However,two essential requirements must be met inrespect of any intervention by Parliament orthe National Assembly: First, an interventionmust not interfere with the final control overthe finances or administration of the relevantinstitution; and, second, it must not give rise toa reasonable apprehension of interferenceamongst informed individuals.


The difference in the powers and functions ofthe Chapter 9 and associated institutions there-fore determines the extent of authority of theNational Assembly and touches on their inde-pendence.

3.2. ACCOUNTABILITY OF THE CHAPTER 9AND ASSOCIATED INSTITUTIONS

In considering the concept of accountability,distinction must be drawn between accounta-bility and the interrelated concept of oversight.Often, these concepts are used interchange-ably, yet they have very distinct and precisepurposes and functions. In a report preparedfor the Joint Rules Committee of Parliament inJuly 1999,

9

it is stated that accountability“implies a relationship [defined by] a hierarchyand a duty of a body to explain and justify itsconduct to another body”. The Constitution isspecific regarding the accountability of Chapter9 institutions, the Public Service Commissionand the Financial and Fiscal Commission to theNational Assembly or Parliament in sections181(5), 196(5) and 222 respectively.

While there is no constitutional provision foraccountability of the Independent Communi-cations Authority of South Africa, the Pan-SouthAfrican Language Board and the National YouthCommission, the Acts establishing these institu-tions require their annual reports to be tabledin Parliament.

In terms of section 181(5) of the Constitution,state institutions supporting constitutionaldemocracy “are accountable to the NationalAssembly and must report on their activitiesand the performance of their functions to theAssembly at least once a year’. This requiresreporting to the National Assembly on theimplementation of their mandates and expen-diture of public funds. Similarly, the associated

institutions report to the National Assembly orParliament through their annual reports.Parliament, and specifically the NationalAssembly, must provide for mechanisms toensure such accountability. The crucial compo-nent of the accountability mechanism is thestructures, systems and processes establishedby Parliament to engage effectively with thereports it receives.

Oversight refers to the role played by the legis-lature in assessing the performance and con-duct of organs of state and recommendingaction for improvement. Section 55(2)(b) ofthe Constitution empowers the NationalAssembly to conduct oversight over any organof State. The interrelatedness of accountabilityand oversight is evident in the types of reportsissued by Chapter 9 and associated institutionsthat serve to inform and complementParliament’s oversight of specific matters. Such“special reports” would require differentprocesses and exposure in Parliament.

While oversight is continuous, accountabilityrefers to a particular instance, incident or event.

Furthermore, in the report mentioned above,reference is made to “amendatory accountabil-ity”. This refers to the duty, inherent in the con-cept of accountability, to rectify or make goodany shortcoming or mistake that is uncovered.

As mentioned earlier, in the case of the PublicProtector, the National Assembly conducted aninquiry in 2006 at the request of the PublicProtector through the Office of the Speaker,arising out an alleged dispute in the Office ofthe Public Protector. It is important to note thatthe accountability mechanism put in place bythe National Assembly in this instance assistedthe Public Protector.

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9 Corder H, Jagwanth S, Saltau F (1999): Report on Parliamentary Oversight and Accountability

Due consideration must be given to ensuringthat the oversight role of Parliament and theaccountability mechanisms established do notinfringe on the independence of Chapter 9 andassociated institutions.

3.3. EFFECTIVENESS

Assessing the effectiveness and efficiency ofChapter 9 and associated institutions was a crit-ical component of the terms of reference of theCommittee. Effectiveness refers to more than aquantitative assessment of output, but rather aquantitative and qualitative assessment of out-comes. Section 181(3) of the Constitution com-pels other organs of state to assist and protectChapter 9 institutions to ensure their effective-ness.

In addition, the Committee draws the specialattention of all bodies established by theConstitution to the provisions of section 237,which is headed “diligent performance of obli-gations”. This section states that all constitu-tional obligations must be performed diligentlyand without delay. The importance of examin-ing effectiveness is that it shifts the focus frominputs and outputs to an outcomes-basedassessment of the projects, programmes andpolicy implementation of the institutions. Theassessment therefore goes beyond concernsabout whether an institution is fulfilling its con-stitutional and legal duties efficiently andexamines the relevance, impact and quality ofthe institutions. “Relevance” would elaborateon whether the institutions address a particularneed and “impact” would assess the extent towhich the need is addressed.

3.4. INDIVISIBILITY, INTERDEPENDENCEAND INTERRELATEDNESS OF HUMANRIGHTS

Traditionally, a distinction was made betweencivil and political rights on the one hand andsocial and economic rights on the other. Socialand economic rights were regarded as claimsagainst the State and therefore not equal tocivil and political rights.

The Bill of Rights in our Constitution containsboth civil and political rights and social andeconomic rights. It is based on the widelyaccepted idea that all rights are universal, indi-visible, interdependent and interrelated asaffirmed in the Vienna Declaration andProgramme of Action of 1993. Any assessmentof the appropriateness and effectiveness ofChapter 9 and associated institutions musttherefore take this into account.

Given our particular history, the indivisibilityand interrelatedness between political and civilrights, on the one hand, and socio-economicrights, on the other, cannot be denied. Withoutsocio-economic rights, political and civil rightscannot exist in a meaningful way and viceversa. With due recognition to the challengesfaced by the State, our Constitution makes pro-vision for the progressive realisation of socialand economic rights, with the exception ofbasic education including basic adult education,which is peremptory.

What this means in practice is that a true con-stitutional democracy encompasses more thansimply providing people the opportunity tovote. Socio-economic rights, such as the right


to adequate housing, basic services, water andhealth care are fundamental rights in the senseas they go the heart of vulnerable groups’ mostbasic survival needs.

Furthermore, providing for both civil and politi-cal rights, and also socio-economic rights in theConstitution, meant giving actual substance andcontent to the notion of equality. These rightsaim to create a “minimum civic equality”,which in turn allows people to fully exercisetheir political and civil rights. For example, aperson would arguably be more willing andable to exercise their civil and political rights,when their basic needs of food, shelter, ade-quate health care and basic services have beenmet.

The drafters of our Bill of Rights realised theindivisibility and interdependence of humanrights. Within the South African context, for ourConstitution to have “a meaningful place in thehearts and minds of the citizenry” it had toaddress the “pressing needs of ordinary peo-ple”. It could not be seen to “institutionaliseand guarantee only political/civil rights andignore the real survival needs of the people – itmust promise both bread and freedom”

10

.

The Committee thus had to assess whether thecurrent and intended constitutional and legalmandates of the constitutional bodies enhan-ced the promotion and protection of humanrights in general, given the interrelated natureof human rights.

It could be argued that because of the interde-pendence and indivisibility of rights, therecould be a danger that a proliferation of humanrights bodies could result in the creation of gapsin services and support to the public and fur-thermore could create tremendous confusionregarding public access to recourse for remedi-al action. Where there are various bodies deal-ing with human rights matters, well-structuredand effective co-ordination amongst the bod-ies, efficient record-keeping and documentmanagement and compatible systems andprocesses are vital to ensure that services tothe public are accessible, comprehensive andthat duplication of work is kept to a minimum.The Committee had to assess whether one sin-gle “umbrella” human rights body would not bebetter suited to give content to the indivisibili-ty and interdependence of human rights by cre-ating a seamless and focused approach tohuman rights as a whole.

4. Conclusion

With due regard to its terms of reference andhaving established a set of principles to guideits work, the Committee now turns to thereview of each of the institutions. TheCommittee begins with distilling the commonissues and makes key recommendations in thisregard.

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10 Haysom 1992: 454

CHAPTER 2

During the course of its deliberations it soonbecame evident to the Committee that thereare a number of issues common to the institu-tions being reviewed that require its attention.While the precise difficulty that these broadissues present might differ from one institutionto the next, when viewed collectively it isapparent that a lack of consistency and coher-ence in approach is ultimately undermining oftheir individual, and even common, efforts.

Accordingly, the Committee is of the view thata number of these arrangements merit urgentreview for the purposes of identifying a moresystematic approach, particularly those regard-ing funding and budgets, the appointment ofcommissioners, collaboration between theinstitutions, internal governance arrangementsand the relationship of the institutions withParliament.

1. Financial matters and budget allocations

As discussed earlier in this report, financialindependence is an important indicator of theindependence of the Chapter 9 and associatedinstitutions. The Committee is therefore con-cerned at the inconsistent accounts it receivedfrom the institutions under review as to theirbudget processes. The Committee learnt thatthe institutions follow different fundingprocesses, some institutions enjoying moreautonomy in those processes than others.

With the exception of the Public ServiceCommission, which has its own Budget Vote,the budgets of all the institutions are locatedwithin the budget appropriations of variousnational government departments. For exam-ple, the budget allocations for the HumanRights Commission, the Commission for Gender

Equality and the Public Protector can be foundin the Vote of the Department of Justice andConstitutional Development, while the NationalYouth Commission has its budget allocationwithin the Presidency’s Vote. However, thedepartments do not have any authority toadjust the allocations to these institutions, act-ing merely as a conduit for the transfer ofmonies to the relevant institutions. Most of theinstitutions, however, indicated that while theysubmit their budget proposals directly toNational Treasury, they are not able to defendtheir budget submissions and seldom receivethe allocations that they request.

The Committee notes that the institutionsreviewed expressed general unhappiness withthe budget processes and in some instancestheir budget allocations.

The Committee believes that the location of thebudgets of the institutions within the budgetallocations of specific government departmentsimpacts negatively on the perceived independ-ence of the institutions and creates a falseimpression that the institutions are accountableto the respective government departments forthe use of their finances. The Committee’sview in this regard is shared by NationalTreasury, who referred in its submission to thegeneral presumption that agencies that arefunded through departmental Budget Votes areaccountable to the respective departments.While the institutions under review are notagencies of the government, it appears thatthis distinction is not always apparent in prac-tice in the relationship between the institutionsand government departments.

Therefore, the Committee concludes that thebudget processes of the institutions should berevised to accomplish a greater degree of stan-dardisation and to promote and protect the

19COMMON ISSUES AND KEY RECOMMENDATIONS

CHAPTER 2

COMMON ISSUES AND KEY RECOMMENDATIONS

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independence of the institutions. In its evi-dence to the Committee, the National Treasurysuggests that consideration be given to thelocation of the budgets of certain of these bod-ies in the Budget Vote of Parliament in recogni-tion of the fact that these bodies are account-able to the National Assembly.

Given that the institutions under review eachhave specific mandates and, furthermore, thattheir budgets and financial arrangements differ,the Committee is in agreement with NationalTreasury that the institutions whose budgetscould be provided for in Parliament’s BudgetVote would include those institutions whosemandates require express independence fromthe Executive. These institutions include theElectoral Commission, the Human Rights Com-mission, the Public Protector, the Com-missionfor Gender Equality, the Commission for thePromotion and Protection of the Rights ofCultural, Religious and Linguistic Communitiesand the Financial and Fiscal Commission. TheCommittee feels, however, that it is invidiousand unsatisfactory to distinguish between bod-ies, which, apart from the National YouthCommission, are all described by legislation asindependent bodies. The Committee thereforedoes not accept the recommendation of theNational Treasury in this regard.

The Committee also considers strange theNational Treasury’s contention that the currentlocation of the budget of the Auditor-Generalwithin the National Treasury Budget Vote is sat-isfactory, given the special relationshipbetween National Treasury and the Auditor-General and the fact that the Auditor-Generalprovides services on a cost-recovery basis.

The Committee therefore recommends as fol-lows:a) The budgets of all bodies identified by the

Constitution and which are included in thisreview should be part of Parliament’sBudget Vote. This is elaborated hereunder.

• Since most of the institutions areaccountable to the National Assemblyand Parliament maintains oversight overthem, the Committee is of the view thatParliament’s Budget Vote would be amore appropriate location for the budg-ets of the institutions.

• Furthermore, the Committee highlightsthe requirement for Parliament to estab-lish or identify appropriate structures andmechanisms to ensure an effective andefficient budget process.

• The process should be negotiated withNational Treasury and should afford theinstitutions adequate opportunity tomotivate their budget submissions direct-ly to National Treasury before decisionson the budget allocations are taken. Ifsuch an arrangement is agreed to, theprogramme within Parliament’s BudgetVote for these institutions would still fallunder the Public Finance ManagementAct and would be subject to accountabil-ity and audit arrangements common toother organs of state.

b) The Committee understands that all theChapter 9 and associated institutions fallwithin the purview of the StandingCommittee on Public Accounts. The Com-mittee therefore reiterates that the StandingCommittee should exercise its jurisdictionover these bodies more fully.


2. Appointments

The matter of appointment procedures was thearea in which the Committee received thelargest number of representations.

The effectiveness and efficiency of the appoint-ment procedures are critical, especially giventhe role of Parliament in this regard. TheCommittee considers this important becauseParliament does not sit throughout a year. Anad hoc or a portfolio committee usually makesrecommendations to the National Assembly.Therefore, the procedures must fit into theagendas of committees and must be taken intoconsideration when the programme ofParliament is being worked out. The Committeemakes this point because some proposalsmade in submissions to the Committee did notappear to take into account the sessional natureof the parliamentary timetable.

There are significant differences in the appoint-ment processes of commissioners and mem-bers of the Chapter 9 and associated institu-tions. The appointment procedures are detailedin Annexure 2.

The Committee acknowledges that the differentmandates, powers and functions of the institu-tions mean that their composition and appoint-ment procedures cannot be identical and that,as such, it would be incorrect to apply a ‘one-size-fits-all’ approach to appointments. Never-theless, the Committee maintains that a rea-sonable degree of consistency is required butthat there must in fact be variation allowed.

Furthermore, the Committee acknowledgesthat any appointment procedure should be con-sistent with the principle of upholding and pro-tecting the independence of the institutions.

2.1. SELECTION CRITERIA

The Constitution makes general provisions forthe appointment of the Public Protector, theAuditor-General and the Commissioners of theHuman Rights Commission, the Commission forGender Equality and the Electoral Commission.Under section 193, certain selection criteria andprocedures are elaborated. These include therequirements that appointees to these institu-tions must be South African citizens must be fitand proper persons to hold the particular office.A further requirement is that the compositionof the Commissions must reflect the race andgender composition of South Africa.

Furthermore, section 193(3) stipulates thatspecialised knowledge of, or experience in,auditing, state finances and public administra-tion are additional requirements that must betaken into account when appointing theAuditor-General.

In addition, a number of other constitutionalprovisions are applicable:

• Section 186 requires that the composition ofthe Commission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities must be broadlyrepresentative of the main cultural, religiousand linguistic communities and must broad-ly reflect the gender composition of SouthAfrica.

• Section 196(10) requires that a personappointed to the Public Service Commissionmust have knowledge of, or experience in,administration, management or the provi-sion of public services.

The selection criteria for commissioners ofother institutions are elaborated in the specificlegislation establishing the respective institu-


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tions. Some inconsistencies are evident in theelaboration of appointment procedures in therespective legislation.

The Committee feels that additional criteriashould include interest or a record of involve-ment in matters related to the functions of thespecific body. This would apply to all bodiesreviewed, with the exception of the Auditor-General.

The Committee is concerned about the lack ofavailability of sufficient people for appointmentto these bodies. There is also insufficient rep-resentation of rural people in the Commissions.The Committee feels that it is up to Parliamentto ensure that the pool is enlarged. Advertise-ments should be placed in newspapers. Theseshould be supplemented by discussions onradio.

In submissions received by the Committee,some civil society groups suggested that indi-viduals with high political profiles should bedisqualified from appointment to any of theChapter 9 or associated bodies. These submis-sions pointed to the provisions of the ElectoralAct, which bars individuals with a high politicalprofile from appointment to the ElectoralCommission. The Committee is of the view,however, that, given South Africa’s political his-tory, it would be unacceptable to place anabsolute ban on the appointment of individualswho had been actively involved in politics.Such restriction would disqualify many promi-nent and worthy candidates from possibleappointment to a Chapter 9 institution. How-ever, the Committee adds two qualifications tothis view.

Firstly, any individual who holds a high-levelposition in a political party or other politicalentity and is appointed to a Chapter 9 or asso-

ciated institution must resign from that post onbeing appointed.

Secondly, any member of a Chapter 9 or asso-ciated institution who becomes a candidate fora political party in the election for a legislature,whether at local, provincial or national level,should resign his or her membership of theChapter 9 or associated institution immediately.The Committee views this as being in accor-dance with the general practice in the publicservice and in other similar bodies such ashigher education institutions.

2.2. ROLE OF PRESIDENT AND MINISTERS

The Committee notes that there is no uniformapproach to appointments. The bodies wereset up at different times and there is no centralbody dealing with appointments. Apart fromthe Commission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities and the Financialand Fiscal Commission, the National Assemblyrecommends candidates for appointment toChapter 9 and associated institutions. Eitherthe President or the relevant Minister makesappointments.

The President appoints the office-bearers of anumber of the institutions under review on therecommendation of the National Assembly. Inthis regard, the President’s powers are non-dis-cretionary in the sense that provided the cor-rect procedure has been followed, he or shemay not refuse to make the appointment. Therecommendations to the President follow apublic process through the proceedings of theNational Assembly. The President’s role is tocarry out the recommendations.

The Committee notes, however, that there havebeen instances where the non-discretionary


nature of the President’s power of appointmenthas not been fully appreciated. For example,despite the National Assembly’s recommenda-tion that eleven commissioners be appointed tothe Human Rights Commission, the Presidentappointed only five commissioners. This hasimpacted negatively on the work of theCommission.

More recently, there was an inordinate delay ineffecting the National Assembly’s recommen-dations for the appointment of commissionersto the Commission for Gender Equality. TheNational Assembly’s recommendations in thisregard were communicated to the Presidencyin October 2006. The appointments, however,were made only in May 2007. This delay aroseas a result of the Office of the President beingunable to determine the terms of office of thefull-time Commissioners. The Commission forGender Equality Act requires that the term ofoffice of full-time Commissioners should notexpire at the same time. The ad hoc committeedealing with recommendations was recon-vened to recommend terms of office for thoseto be appointed as full-time Commissioners.

The Committee is also concerned at the rolegiven to Ministers in the appointment process-es of the Pan South African Language Board,the Commission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities and the Indepen-dent Communications Authority of South Africa.The role of the relevant Ministers in this respectcould be seen as infringing on the independ-ence of those institutions and, as such, is in theview of the Committee inappropriate.Accordingly, the Committee recommends thatMinisters should play no role in the appoint-ment procedures for independent institutions.

2.3. CONTINUITY

The Committee is of the view that the simulta-neous expiry of the terms of office of all, oreven a large portion, of the members of a com-mission negatively impacts on the effective-ness and efficiency of the institution. Forexample, the Committee found that the factthat the Commission for Gender Equality waswithout Commissioners for more than a yearhas considerably undermined its operationaleffectiveness and efficiency.

The Committee also notes the general absenceof mechanisms to ensure the transfer of knowl-edge from outgoing to newly appointed com-missioners, which results in the loss of institu-tional memory. This lack of continuity is com-pounded by the absence of knowledge-man-agement strategies and adequate document-management systems in the institutions.

The Committee also raises the need for adegree of continuity in the light of the role ofthe Chief Executive Officers who could supplantthe role of the commissions by becoming thefocus of the institutional memory.

In its interactions with the Committee, thePublic Service Commission, for example,expressed considerable anxiety that the term ofoffice of the Chairperson and the Commission-ers would expire at the same time. TheCommission proposed an amendment to thelegislation to allow for staggering of appoint-ments and expiry of terms of office. TheHuman Rights Commission would face a similarsituation in the future. The Committee feelsthat the principle of staggering should apply toall bodies under review, except the AuditorGeneral and the Public Protector. TheCommittee is of the view that this may notrequire legislative amendment if the nominat-


C H A P T E R 2

ing and appointing authorities are allowed tostagger appointments.

In the interactions of the Committee with thebodies, the Committee learnt of the absence ofa systematic, co-ordinated and timely processfor the replacement of Commissioners onexpiry of their terms of office. Throughengagement with the institutions and exami-nation of the constitutional and statutoryrequirements, the Committee concludes thatParliament must take responsibility for the inef-ficiencies in this regard, as it is the NationalAssembly that is charged with initiating theappointment procedures in most instances. Inparticular, the Committee believes that theNational Assembly should develop mechanismsto monitor the expiry of terms of office, and toensure that the procedures to appointCommissioners are initiated well in advance, soas to prevent such large-scale or long-termvacancies that can cripple operations.

The Committee recommends that the proce-dures set up should allow for appointments tobe made at least one month before the expiryof the terms of office of the outgoing commis-sioners. This would allow for a period of hand-over and the conducting of exit interviews,thereby enhancing continuity.

2.4. APPOINTMENT OF CHAIRPERSONS

The Committee notes that legislation does notprovide for a uniform method of appointing thechairpersons of the various commissions underreview. For example, the relevant legislation pro-vides that the Chairperson of the South AfricanHuman Rights Commission be appointed by themembers of the Commission themselves.However, in the case of the Commission forGender Equality, it is the President who appointsthe Chairperson, while the Commissioners

appoint from among themselves the DeputyChairperson.

There are advantages to each of the methodsof appointment. Where commissioners appointtheir own chairperson, there is an excellentchance that he or she will enjoy the confidenceof fellow commissioners. This method ofappointing a chairperson could also enhancethe legitimacy of the body and strengthen pub-lic perceptions about its independence.

On the other hand, as newly appointed com-missioners are required to select a chairpersonat the start of their term, they may not haveadequate knowledge about fellow commission-ers eligible for the chairpersonship for theirchoice to be appropriately informed. In theoryat least, the parliamentary committee chargedwith the appointment of the commissioners isin a better position to assess eligible candidatesas it will have studied their qualifications andwould have conducted in-depth interviews.

The Committee therefore proposes that the leg-islation should provide for a uniform method ofappointing the chairpersons of the various com-missions currently appointed on the recom-mendation of the National Assembly. Thisprocess could either provide for the appoint-ment of a chairperson by the commission itself,or by the relevant parliamentary committee. Inany event, it should also provide, where appli-cable, for the appointment of a deputy chair-person by the commissioners themselves.

2.5. PUBLIC PARTICIPATION IN THEAPPOINTMENT PROCESS

The Constitution, in section 193(6), provides forthe involvement of civil society in the appoint-ment processes of the Auditor-General, thePublic Protector, the Human Rights Commission,


the Commission for Gender Equality and theElectoral Commission. Public involvement inthis instance is at the discretion of the NationalAssembly. In the Committee’s investigations ingeneral, it finds that there is public participationthrough the nomination of commissioners.However, the Committee emphasises the needfor greater and more meaningful publicinvolvement in the appointment procedures,provided that this is timely and efficient.

At present, the involvement of civil society inthe appointment of commissioners and office-bearers to Chapter 9 institutions is through thenomination of individuals. A parliamentarycommittee shortlists nominees for interviewand the list of recommended candidates is pre-sented to the National Assembly for adoption.The recommendations of the NationalAssembly are sent to the President for appoint-ment. Civil society has no involvement in theprocesses following the nomination process.

In submissions received by the Committee,some civil society organisations said that civilsociety must be involved from the beginning ofthe process. These submissions appear toignore the fact that Parliament cannot deter-mine who from civil society should be asked tobe involved. The representation of civil societyis not self-evident. It would be incorrect forParliament to select representatives of civilsociety for this purpose. What the Committeesays is that the appointment system mustinvolve the public, to meet the Constitutionalrequirements.

The Committee considers the involvement ofcivil society in the appointment procedures tobe necessary; particularly as such involvementwould enhance the transparency and overallcredibility of these procedures and greater pub-lic awareness of these bodies.

Therefore, the Committee is of the view thatthe National Assembly should devise appropri-ate mechanisms to ensure the active andmeaningful participation of civil society in thisregard. The Committee proposes that lists ofshort-listed candidates should be published forpublic comment before selection panels/com-mittees make recommendations to theNational Assembly.

The Committee makes the following generalrecommendations to improve the appointmentprocedures:

a) The Acts elaborating appointment and dis-missal procedures should be reviewed toensure:

• Consistency with the provisions of theConstitution;

• A degree of standardisation in theappointment and dismissal proceduresacross the institutions;

• That the role of Ministers is removed;

• Appropriate provisions are made forParliament’s role in the appointment andremovals processes;

• That selection criteria are defined includ-ing matters raised under section 2.1 inthis chapter;

• A uniform method of appointing thechairpersons of the various commissionscurrently appointed on the recommenda-tion of the National Assembly. Thisprocess could either provide for theappointment of a chairperson by thecommission itself, or by the relevant par-liamentary committee;


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• Appointment of Deputy Chairpersons,where applicable, should be done by theCommissions themselves.

b) Members of the National Youth Commissionshould not be restricted to youth. The wis-dom and experience of older persons wouldenhance the work of the National YouthCommission.

c) The portfolio committee which oversees aparticular institution, rather than an ad hoccommittee, should submit nominations fromwhich recommendations for appointmentare to be made by the National Assembly;

d) The National Assembly should consult civilsociety and other role players to define andelaborate the role of civil society in the rec-ommendation procedures;

e) The National Assembly must establishmechanisms to ensure that the proceduresfor the replacement of commissioners arecarried out efficiently. This should includematters such as the staggering of appoint-ments, exit interviews and hand-over peri-ods discussed in section 2.3 of this chapter.The Committee recommends that theprocess should commence at least 6 monthsbefore the date of expiry. Furthermore theappointment of new commissioners shouldbe made at least 1 month before the expiryof the term of office of outgoing commis-sioners.

3. Relationship with Parliament

The constitutional institutions both complementand are supportive of Parliament’s oversightfunction. They complement Parliament’s over-sight role as, together with Parliament, they act

as watchdog bodies over the government andorgans of state. In addition, these institutionssupport and aid Parliament in its oversightfunction by providing it with information that isnot derived from the Executive.

Furthermore, these institutions must account toParliament. However, a distinction may bedrawn between the institutions listed in section181 of the Constitution and the Public ServiceCommission on the one hand, and the otherinstitutions under review. The institutions listedin section 181 and the Public ServiceCommission are unique in that the Constitutionguarantees their independence, yet explicitlystates that they are accountable to the NationalAssembly and must report on the performanceof their functions to the Assembly at least oncea year.

3.1. ACCOUNTABILITY AND THENATIONAL ASSEMBLY

In terms of section 181(5) of the Constitution,the state institutions supporting constitutionaldemocracy are accountable to the NationalAssembly and must report on their activitiesand the performance of their functions at leastonce a year. A similar provision can be found insection 196(6) with respect to the PublicService Commission. Accountability in thissense requires that the institutions report to theNational Assembly on the performance of theirfunctions, as well as on how their budgetswere spent. As mentioned earlier, there is alsoanother type of reporting to Parliament thatserves a very different purpose. This is toinform, assist and complement Parliament’soversight role.

Accordingly, there are, two interrelated but dis-tinct ways in which such institutions engagewith the National Assembly. Firstly, the annual


reports of these institutions provide an accountof their respective activities, as well as howtheir budgets are spent. These must be tabledin the National Assembly, and are then referredto the relevant portfolio committee. TheCommittee notes that, in addition to their annu-al reports, each year the Chapter 9 and associ-ated institutions are required to submit to theNational Assembly their budgets and strategicplans.

11

However, it is evident that portfoliocommittees have had minimal engagementwith the institutions under review on these doc-uments, despite these being essential for effec-tive oversight of the performance, conduct andeffectiveness of the institutions.

The Committee suggests that the Whips shouldgive serious attention to the annual reportsbeing debated in the National Assembly, withdue regard to the exigencies of time.

Secondly, some of the institutions, particularlythose concerned with human rights matters,may submit substantive reports to the NationalAssembly for consideration and action. Forexample, in terms of section 184(3) of theConstitution, the South African Human RightsCommission is required regularly to submitreports to the National Assembly on the meas-ures taken by organs of state towards the real-isation of socio-economic rights concerninghousing, health care, food, water, social securi-ty, education and the environment. Suchreports are an important source of informationand can considerably enhance Parliament’soversight of government departments. Itseems to the Committee that not enoughattention is given to the value of these reports,which require more extensive circulation andconsideration.

In their interactions with the Committee, all thecommissions, excluding the Auditor-General,

expressed their frustration at the unsatisfactoryopportunities for meaningful engagement withthe portfolio committees. Many of the institu-tions indicated that their interactions withParliament were restricted to annual meetingswith portfolio committees of very limited dura-tion (approximately 2-3 hours). The reasonsgiven to the Committee for the limited interac-tion of portfolio committees with the Chapter 9and associated institutions include uncertaintyon the part of the committees regarding theextent of engagement required from themgiven the independence of the institutions;capacity constraints and the extensive work-loads of committees. On the positive side, theinstitutions were all in favour of frequent andmore meaningful interaction with Parliament,calling for a review of the institutional arrange-ments in Parliament in order to facilitate a clos-er relationship. Of course, Parliament cannotbe overwhelmed with the consideration ofannual reports and special reports of theChapter 9 and associated institutions, but theperfunctory way in which they are regardedmust be addressed.

The Committee expresses grave concern at theinadequacy of the present arrangements bymeans of which Parliament exercises its over-sight of these institutions. Perhaps moreimportantly, the Committee is of the view thatParliament is not making full use of these insti-tutions to inform, assist and complement itsoversight of the Executive and to briefMembers of Parliament on the range of mattersof public interest that may be reported by theinstitutions.Some of the institutions put before theCommittee their support of a proposal in a1999 report to the Joint Rules Committee inwhich it was suggested that a standing com-mittee on constitutional institutions be estab-lished to act as an accountability and an over-


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11 Idasa Report p 29.

sight structure. The Committee, however,recalls and reaffirms the reasons for the rejec-tion of this proposal by the Joint RulesCommittee. These include:

1. Such a committee would be impractical, duemainly to the wide-ranging and specificknowledge and experience requiredamongst the membership of the committeeto engage meaningfully with all mattersreported by Chapter 9 and associated institu-tions;

2. Membership of the committee would be dif-ficult to maintain due to commitments ofMembers on portfolio committees; and

3. The proposed functions of the committeewould result in considerable duplication ofthe work of portfolio committees.

The Committee proposes an alternativearrangement, discussed in detail later in thischapter.

3.2. PARLIAMENT’S GENERALOVERSIGHT ROLE

As discussed earlier in this report, the NationalAssembly has a constitutional obligation to pro-vide for mechanisms to maintain oversight ofnational executive authority and any organ ofstate in terms of section 55(2) of theConstitution. In this regard, the institutionsunder review are able to support Parliament inits oversight role by providing it with an alter-native source of information in the form of sub-stantive reports.The content of such reports vary widely accord-ing to the underlying constitutional and legalmandate. For example:

• The Public Protector must report to Parlia-ment twice a year on the findings of inves-tigations of a serious nature, and may alsodo so at any time of his or her own volitionor if requested to do so by the Speaker ofthe National Assembly or the Chairperson ofthe National Council of Provinces.

• The Human Rights Commission must submitquarterly reports to Parliament on findingsin respect of functions and investigations ofa serious nature which were performed orconducted by it, and may do so at any othertime it deems necessary. The Human RightsCommission also has a constitutional obliga-tion to compile reports on how far organs ofstate have come in progressively realising anumber of socio-economic rights.

• The Commission for Gender Equality maymake recommendations concerning genderissues and must prepare and submit anyreports to Parliament that relate to interna-tional conventions, covenants and charters.

These substantive reports are tabled and thenreferred to the relevant parliamentary commit-tee(s) by the Speaker or Chairperson of therespective House for consideration. Referrals ofsuch reports are not usually accompanied byinstructions to report back or to take specificaction unless there is a legal requirement to do soor where there is a special request in that regard.

The Rules of both the National Assembly andthe National Council of Provinces stipulate thatcommittees are authorised to determine theirown procedures (NA Rule 138 and NCOP Rule103). Only in special circumstances, therefore,would the presiding officer when referring areport to a committee, instruct a committee toreport to the House. Such special circum-stances in practice include when there is a legal


requirement and when a report includes specif-ic recommendations directed at Parliament inpursuance of the relevant institution’s perform-ance of its mandate.

In all other circumstances, it is the prerogativeof the committee to decide whether it needs tosubmit a special report to the House on a reportreferred to it. This approach is also written intothe rules of the National Assembly and theNational Council of Provinces (NA Rule 305(2)and NCOP Rule 101(4)) and ensures that com-mittees are free to determine their own pro-grammes and priorities.

A committee that is instructed to report ordecides itself to submit a report on a substan-tive report referred to it would thereforeengage with the substantive matters raised andcould well decide to interact with the relevantinstitution on those matters. The committeewould then, as appropriate, make its own rec-ommendations to the House for considerationand possible adoption by it. If the House adoptsa committee report containing recommenda-tions, the practice is that the presiding officercommunicates the decisions of the House inwriting to the institution concerned and to anyaffected organ of state.

Whilst the Houses and their committees mustcontinue to control their own agendas and can-not have their agendas determined for them,and hence cannot be expected to react to allreports received, the Committee believes thatwhenever a substantive report from an institu-tion is tabled and is of such a nature that itrequires a response from Parliament, whetherthat is pertinently specified or not, it is incum-bent on the relevant committee to submit areport to the House in order to give appropriateeffect to the constitutional injunction in section181(3) which requires of Parliament (as of all

organs of state) to assist these institutions andensure their effectiveness.

Some substantive reports received from theseinstitutions may indeed justify a House debate,particularly when the relevant committee(s) hasalso submitted a report on the substantiveissues raised. In such circumstances, the Whipsand Programme Committee should considerarranging for a debate in the House. In so doing,the House would also be performing its consti-tutional function of debating matters of nation-al importance since theses institutions arethemselves routinely engaged in such matters.

3.3. RECOMMENDATIONS FOR IMPROVEMENT OF ACCOUNTABILITYAND OVERSIGHT

The Committee notes that there have been var-ious submissions or proposals made forenhanced oversight of executive action byParliament. These include the Report onParliamentary Oversight and Accountability sub-mitted to the Joint Rules Committee in 1999 andthe Draft Oversight Model developed by theJoint Rules Committee Task Team on Oversightand Accountability in 2007. These should beseen in the context of strengthening the roleand functions of parliamentary committees.The rationalisation of portfolio committees hasalso been mooted. The Committee is of theview that this is a matter for another report.

The Committee feels that at this stage it isimportant to build the capacity of portfoliocommittees. Specific recommendations are madein this regard later in this chapter.

The Committee acknowledges that the presentarrangements by which the National Assemblyexercises oversight of the institutions underreview are inadequate. Accordingly, the


C H A P T E R 2

Committee has considered a number of mech-anisms intended to improve Parliament’s inter-action with the Chapter 9 and associated insti-tutions.

3.3.1. Unit on Constitutional Institutionsand Other Statutory Bodies in theOffice of the Speaker

The Committee considers a lack of co-ordina-tion, the absence of systems to monitor reportsand track the terms of office of commissionersas being among the major shortfalls in the cur-rent parliamentary arrangements for oversightand accountability with respect to the Chapter9 and associated institutions. In its interimreport to the Speaker on 28 November 2006,the Committee, therefore, recommended theestablishment of a unit on constitutional institu-tions and other statutory bodies appointed bythe National Assembly. A list of bodies is pre-sented in annexure 3 of this report.

The Committee feels that the following factorsshould be taken into account in considering thisunit:

The unit should be located in the Office of theSpeaker and always act under instruction anddirection of the Speaker. The Committeeacknowledges that the Speaker has delegatedthe responsibility for Chapter 9 institutions tothe Deputy Speaker. This is, however, an inter-nal arrangement and the Speaker is still ulti-mately accountable for the responsibilities ofthe National Assembly towards Chapter 9 andassociated institutions.

The unit should not be subsumed under theduties of the National Assembly Table. For thisintervention to be effective, the unit mustdevote focused attention to the Chapter 9 andassociated institutions.

The Committee envisages that the unit will co-ordinate all interactions between the NationalAssembly and the state institutions strengthen-ing democracy (namely, the Public Protector,the Human Rights Commission, the Commissionfor the Protection of Rights of Cultural, Religiousand Linguistic Communities, the Commission forGender Equality, the Auditor-General and theElectoral Commission) and other independentinstitutions (namely, the Public ServiceCommission, the Financial and FiscalCommission and the Pan South AfricanLanguage Board), who are accountable to theNational Assembly and/or must report to theNational Assembly. All other bodies in whichthe National Assembly or Parliament plays arole in appointments could also be included.

The main functions of the unit would be to -

1. Receive and, through the Speaker, direct cor-respondence from such bodies to the appro-priate structure in the National Assembly.This would include recommendations for themost appropriate portfolio committee orgroup of portfolio committees to whichreports should be referred and draftingterms of reference for such committees inrespect of such reports, including time-frames for reporting to the Speaker or theNational Assembly;

2. Co-ordinate the oversight and accountabilityfunctions of the National Assembly withrespect to these bodies to ensure that theNational Assembly complies with its consti-tutional duties in a consistent, efficient andfair manner;

3. Co-ordinate, through the Office of theSpeaker, the timely and effective recom-mendation by the National Assembly for theappointment of commissioners and office-bearers to the relevant bodies in accordancewith the National Assembly’s function.


4. Highlight issues emanating from reportstabled in Parliament by such bodies for pos-sible debate in the National Assembly.

5. Ensure that the National Assembly dis-charges its constitutional obligations inrespect of these organisations in a system-atic, coherent, comprehensive and efficientmanner.

6. Ensure the timely communication of recom-mendations contained in reports adopted bythe National Assembly to the relevantMinisters where appropriate.

7. Monitor and track the progress of recom-mendations communicated to Ministers andother appropriate bodies.

8. Act as a clearing-house and repository ofinformation and documentation receivedfrom the organisations.

The unit should be headed by a senior officialat the level of Deputy Director-General, assist-ed by at least three senior officials at Chief-Director and Director levels, a librarian and ade-quate administrative and secretarial staff.

The Committee recommends the immediateestablishment and staffing of this unit.

3.3.2. Strengthening the PortfolioCommittees

The Committee recommends a number of meas-ures below aimed at strengthening the oversightrole of portfolio committee’s concerning theChapter 9 and associated bodies. In this regardthe Committee is particularly concerned that thereports that these institutions submit toParliament should be efficiently and comprehen-sively addressed by the relevant committee(s).

1. The capacity of portfolio committees mustbe enhanced. Such measures would includethe appointment of specialist researchers,report writers, and administrative and secre-tarial staff;

2. Sufficient budgets, although the Committeenotes that current allocations are not alwaysfully utilised;

3. Ease of access to other technical supportstaff as and when required;

4. The development of specialist knowledgeand expertise by Members;

5. The drawing up of guidelines, manuals andadvice for committee chairpersons;

6. Adequate meeting venues and facilities; and

7. The establishment of subcommittees withincommittees to focus on specific mattersemanating from reports of Chapter 9 andassociated institutions. This would allow thecommittees to develop a wider range ofexpertise.

3.3.3. Accountability Standards Legislation

Among the problems experienced in connec-tion with the National Assembly’s oversightrole in respect of the constitutional institutionsis that there is little to guide committees inholding the institutions to account while simul-taneously respecting their independence. As aconsequence, committees are often unclear onhow, or the extent to which, they shouldrespond to the work done by the Chapter 9Institutions.

The 1999 Report on Parliamentary Oversightand Accountability recommended the adoption


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of an “Accountability and Independence ofConstitutional Institutions Act”. This proposalenvisaged that legislation would recognise andregulate the interrelationship between theChapter 9 bodies and Parliament’s oversightfunction while ensuring their independence.This proposal was never adopted byParliament. However, the Committee is of theview that an adapted version of such legislationwould assist greatly in providing structure tothe accountability and oversight work done byParliament. The Committee cautions that suchaccountability legislation will require carefulcrafting and should only be considered afterextensive consultation with the affected institu-tions.

4. Institutional governancearrangements

The Committee notes a number of commonproblems concerning the institutional gover-nance arrangements of the various bodiesunder review.

4.1. INTERNAL TENSIONS

The Committee is aware that internal tensionsor conflicts have taken various forms. Tensionshave arisen amongst commissioners them-selves, between commissioners and the secre-tariat and within the secretariat. In at least onecase, this has led to immobilisation and in thecase of another commission this has led to theresignation of commissioners on at least twooccasions.

For the most part the enabling legislation pro-vides little assistance, and is even ambivalentor confusing, concerning the powers and func-tions of commissioners in relation to a chairper-son, or chairpersons or commissioners in rela-

tion to the secretariat. Furthermore, theenabling legislation generally does not providefor mechanisms to deal with tensions shouldthey arise, while internal arrangements in thisregard are typically unsatisfactory.

Internal conflicts have to some degree under-mined the effective operations and efficiencyof some of the institutions. The Committee isof the view that the absence of clear lines ofauthority has exacerbated this tendency. TheCommittee feels that there must be clearerdemarcation of functions. It is now vital thatclear lines of authority are determined withinthe commissions, between the commissionersand the secretariat and within the secretariat.

The Committee notes that section 36(2)(b) ofthe Public Finance Management Act 1 of 1999requires that a Chief Executive Officer must bethe accounting officer of that institution.However, the chairperson or head of a commis-sion or institution is either explicitly or implicit-ly mandated to provide overall leadership anddirection for the institution. There is a lacuna inthe Public Finance Management Act regardingthe definition of executive authority. Becausethe law left out the constitutional institutions inthis definition, the National Treasury furnisheda definition by regulation. However, some ofthe institutions were unaware of this and thishas contributed to tension and sometimesparalysis between Chief Executive Officers andchairpersons of commissions.

The Committee recommends as follows:

a) The Committee feels that, where appropri-ate legislation is not clear, such legislationmust be amended to clarify the lines ofauthority between the chairperson of acommission or the head of an institution andthe Chief Executive Officer as well as


between chairpersons of commissions andother commissioners.

b) Furthermore, while this report cannot gointo detail, the Committee feels that a codeof conduct that would apply to all Chapter 9and associated institutions is required.

4.2. REMUNERATION AND CONDITIONS OF SERVICE

There is no uniformity in the procedures fordetermining the salaries and conditions ofemployment of commissioners and heads ofinstitutions. The President in consultation withCabinet, for example, determines the salariesof members of the Human Rights Commission,while the National Assembly is charged withdetermining the remuneration and conditionsof service for the Public Protector.

The Committee notes that Parliament has notcarried out its obligation in terms of section219(5) of the Constitution (Annexure 1). Thisexplains, to some degree, the disparities in thedetermination of remuneration and conditionsof service amongst the Chapter 9 and associat-ed institutions. This section provides for nation-al legislation, which must establish the frame-work for determining the salaries, allowancesand benefits of, amongst others, the PublicProtector, the Auditor-General, and members ofany commission provided for in theConstitution, including the BroadcastingAuthority referred to in section 192. In thisregard, the Committee wishes to draw atten-tion to the requirement of section 237 of theConstitution, which states that all constitutionalobligations must be performed diligently andwithout delay.

The Committee is not aware of how increases

in salaries and improvements in conditions ofservice are carried out. The eccentricity of thisis exemplified if one looks at the salaries andconditions of service of the Human RightsCommission, which are determined by thePresident. The Committee draws the attentionof the National Assembly to this lacuna as anurgent priority. The envisaged framework leg-islation will guide the approach to all bodiesand bring about a degree of comparability.

It is also not clear to the Committee that thesalaries and benefits of the commissioners andheads of institutions are commensurate withthe nature and role of the functions that theyare required to perform.

The Committee notes that at present theIndependent Commission for the Remunerationof Public Office-Bearers Act 92 of 1997 providesfor a Commission, appointed by the President,to recommend salaries of any member of theNational or Provincial Cabinets and legislatures,as well as other bodies such as the Council ofTraditional Leaders, and members of theJudiciary. This is an advisory body and thePresident has the discretion to accept or rejectrecommendations. The Committee recom-mends that consideration should be given toextending the mandate of this to include theChapter 9 and associated institutions.

Although the legislation permits this body toconduct an inquiry into any matter in respect ofwhich it is authorised by section 219 of theConstitution, it does not provide the requisiteremunerative framework for the Auditor-General, the Public Protector, and other com-missions established in terms of the Consti-tution, including the Broadcasting Authorityestablished in terms of section 192 of theConstitution. The Committee is of the view thatthe Act could be amended to include such bod-


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ies within its ambit and to extend theCommission’s powers to establish the requisiteframeworks as envisaged by the Constitution.Alternatively, new legislation could be formu-lated and adopted.

In the light of the above, the Committee rec-ommends that:

a) Framework legislation in terms of section219(5) of the Constitution (Annexure 1) mustbe adopted urgently, either by amendmentof the Independent Commission for theRemuneration of Public Office-Bearers Act orthrough development of new legislation.

4.3. MECHANISMS FOR DISCLOSURE OF INTERESTS

All the bodies under review are public bodiesregulated in terms of national legislation andfulfilling a public function. As such, all of thesebodies receive public funds and have a legalduty to spend such money in accordance withtheir mandate. The bodies are subject thePublic Finance Management Act and itsaccounting officers have a duty to ensure theeffective, efficient, economical and transparentuse of institutional resources.

12

Furthermore, these institutions exercise impor-tant constitutional and legal mandates and arerequired to act in an independent and impartialmanner. Without public trust, these institutionswould lose credibility and legitimacy and thiswould hamper their effectiveness. It is withoutquestion that the senior leadership of theseinstitutions must uphold the highest standardsof ethics. The Committee is, therefore, of theopinion that mechanisms must be put in placeto ensure that there can be no conflicts of inter-est, and that the governance of these institu-tions is open and transparent.

Thus, it is of concern to the Committee that forthe most part there is no systematic approachto guard against conflicts of interest. Whilesome institutions provide for the compilation ofa list of members’ interests, others do not.Where such a list is kept, it did not appear tothe Committee that these lists are readily avail-able to the public and the media. Examples ofthe lack of consistency and confusion that pre-dominate abound:

• The Human Rights Commission has no poli-cy as yet on disclosing and/or seeking per-mission for involvement of the executivemembers in private/commercial organisa-tions. However, in September 2006 mem-bers were required to submit forms todeclare their membership of boards oforganisations. The members were alsorequested to state on the declaration formwhether or not they receive financial rewardfor their board membership. Presently thereis no committee established to verify thesubmissions. The completed submissions aretaken to the office of the Chief ExecutiveOfficer for review.

• The Commission for Gender Equality has asystem in terms of which a declaration ofinterests is made on a prescribed form. Thehuman resource office, where a register iskept, facilitates this process. The Commis-sion’s policy also provides that every giftabove R500 must be declared in the register.

• The Electoral Commission Act explicitly regu-lates conflicts of interest and prohibits anyfull-time Commissioner from taking up anyother employment or occupation or theholding of any other office, unless specifical-ly authorised to do so by the President. TheAct further prohibits Commissioners from sit-ting in a meeting where a conflict of inter-est may arise and requires that they disclose


12 PFMA section 38(1)(b).

their interest and recuse themselves. Anemployee may furthermore not accept anygift or any other benefit(s) valued at R200 ormore offered to him or her as an officer oremployee without prior permission from theCommission, which reserves the right toorder non-acceptance of any such gift orbenefit. For this purpose, a gift register iskept with the human resources departmentfor the declaration of such gifts or benefitsto employees valued at R200 or moreoffered to them by or on behalf of a personor organisation with whom the Commissionhas, or may enter into, a business relation-ship, and also any gifts or benefits that maybe interned or perceived to influence themin the performance of their functions.

The present arrangements around the regula-tion of conflicts of interest therefore differwidely. There is also disagreement among thevarious institutions about the minimumrequirements for good governance.Given the fact that these institutions make useof public funds, fulfil public functions and aresubject to the Public Finance Management Act,the Committee recommends that:

a) The enabling legislation should be amendedto provide a coherent and comprehensiveframework for the regulation of conflicts ofinterest. In order for such regulation to beeffective, it should include minimum stan-dards of disclosure, including:

i. All personnel of Chapter 9 and relatedbodies must be required to disclose allsubstantial gifts, benefits, and outsidefinancial interests in a public register andthis register must be easily accessible tothe public;

ii. Directorships and/or partnerships held bycommissioners or senior officials must bedisclosed and published in the annualreports of the Chapter 9 and associatedinstitutions. Other declarations should bekept in a register that is easily accessibleto the public.

iii. Each institution must adopt rules thatwould regulate actions in terms of con-flicts of interest.

5. Accessibility

The Committee notes that the Chapter 9 and asso-ciated institutions are largely urban-based. TheCommittee is mindful of the fact that at leastforty-five percent of South Africa’s population livesin rural areas. Those who live in rural areas arefar more likely to be poor, lack access to transportand have low levels of formal education. Theseare the very marginalised and vulnerable peoplemost likely to be in need of assistance to enforcetheir rights or gain access to state grants.Therefore, it is apparent that in order to realisetheir mandates more fully, the Chapter 9 andassociated institutions must facilitate betteraccess to the public in rural areas and becomemore visibly involved in education and promo-tion campaigns in rural areas. The Committeehas been told that institutions lack the humanand financial resources to address this problemfully. The Committee also notes that there hasbeen a trend for Chapter 9 and associated insti-tutions to open provincial and/or regionaloffices in an attempt to be more accessible.The Committee, however, is of the opinion thatthis is not necessarily the most effective way todeal with the problem. Although exact figureswere not provided by many of the institutions,it is clear that these provincial offices take up asizeable amount of the budget. Provincial


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offices require, at a minimum, premises, appro-priate infrastructure and staffing.

Apart from the expenditure, several other prob-lems also arise when such offices are opened.Such problems include that of establishing clearlines of authority and accountability betweenthe national office and the provincial offices.Where commissioners are based in theprovinces, it is also necessary to clarify theirrole in respect of the relevant provincial office.The Committee could not find demonstrableevidence that these principles are consistentlyadhered to by all institutions.

Where a body has the power to investigatecomplaints, uncertainty may also arise aboutwhether such complaints will be dealt with bythe provincial office or the national office. Itappears to the Committee that most com-plainants prefer the national office. This prob-lem becomes more acute where staff membersat provincial offices do not have the requisiteexpertise to deal with complicated complaints.In such cases, there is the danger of duplicationof work as staff at the provincial office will ini-tially investigate a complaint, and only oncethey realise it is too complex refer it to thenational office. Moreover, unnecessary duplica-tion may also arise when decisions of theprovincial offices are made subject to vettingby the national office. A further problem is thatof unreasonable delays in finalising cases.

The Committee was also informed of problemsarising from the difficulties of commissioners inoverseeing and monitoring the work done inprovincial offices. At the same time, the Com-mittee was unable to confirm the usefulness ofall the provincial offices. The Committee there-fore holds the view that provincial officesshould only be opened where a demonstrableneed can be shown and that, if this is done,

clear lines of authority must be establishedfrom the outset. These arrangements can beperiodically reviewed to ensure that theyremain appropriate to the context.

The Committee wishes to emphasise that theinstitutions under review should be innovativein their use of resources to ensure that theybecome more accessible to the public, espe-cially in rural areas. This can include the use ofexisting state infrastructure as points of contactbetween the institutions and the community.Thus, information leaflets and education mate-rial could be distributed at such establishmentsas well as at post offices; libraries, communitycentres and social grant pay-points. The use ofoffices of non-governmental organisations andplaces of religious worship could also be inves-tigated.

The Committee also notes that the governmenthas a number of initiatives, such as theThusong Service Centres, and CommunityDevelopment Workers, which have been set upin the rural areas of South Africa. Such centresmay be invaluable in providing the institutionsunder review greater access to rural communi-ties. Service agreements could be reached withsuch centres and safeguards can be put in placeto ensure that the bodies retain their independ-ence and impartiality.

The Committee makes the following recom-mendations to increase public access to theinstitutions and their work:

a) Institutions should explore innovative publicoutreach and awareness mechanismsincluding:

i. Use of existing government infrastructuresuch as libraries, post offices, communitycentres and social grant pay points;


Thusong Service Centres and CommunityDevelopment Workers;

ii. Use of offices of non-governmental organ-isations and faith-based organisations;

b) Provincial offices should only be establishedwhere the need has been determined.Intuitions should consider sharing of facili-ties in provincial offices where practical andappropriate.

6. A single human rights body

For reasons peculiar to its democratic transition,South Africa is unique in the number of differentinstitutions it has established in terms of theConstitution and by ordinary legislation to pro-tect and promote human rights. In addition toestablishing a national Human RightsCommission, the Constitution creates a numberof specialised human rights bodies to protectand promote the rights of specific constituencies.

These specialised human rights institutionsinclude the Commission for Gender Equality, theCommission for the Promotion and Protectionof the Rights of Cultural, Religious and LinguisticCommunities, and the Pan South AfricanLanguage Board. Moreover, Parliament createdthe National Youth Commission, amongst oth-ers, to promote the rights and interests of theyouth of South Africa.

It is quite clear that the area covered by thehuman rights milieu is broad, requiring practicalmechanisms to ensure that it is sufficientlyencompassing, that there are no gaps and thatthe core elements of investigation and protec-tion are maintained. A multiplicity of institu-tions results in an uneven spread of availableresources and capacities, which has unfortunateimplications for effectiveness and efficiency.

The Committee is of the view that the presentinstitutional framework has created fragmenta-tion, confounding the intention that these insti-tutions would support the seamless applicationof the Bill of Rights.

There are many advantages to the establish-ment of an umbrella human rights commission.Firstly, there is avoidance of the potential forduplication of effort that can easily occur giventhe extent to which the mandates of many ofthe institutions overlap. The present lack of col-laboration and co-ordination that characterisestheir relationship with one another also exacer-bates the potential for duplication of activities.

Secondly, given the importance of ensuring thatresources are utilised most advantageously, asingle human rights commission would beadministratively more efficient. Not only wouldthe sharing of common resources result in costsavings, but it would also permit the moreeffective use of resources and a greater abilityto deliver an effective service for a range ofcustomers. In addition, there would also beopportunity for a fundamental review and real-location of resources of the existing bodies,enabling the commissioners to concentrate onissues of greatest concern.

Thirdly, the establishment of a single humanrights commission is more readily accessible tothe public who, at present, must determinewhich of a multiplicity of institutions is the cor-rect forum to approach. This can be frustratingand confusing for complainants, who may wellbe referred from one body to another. A singlehuman rights commission would also providethe opportunity for a co-ordinated approach tothe promotion of public awareness of the Bill ofRights, as well as of the contribution of the pro-posed commission to the promotion of ahuman rights culture in South Africa.


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Human rights are interdependent and indivisi-ble and rights cannot be easily compartmen-talised. Individuals often experience humanrights violations in multiple ways and may notknow how this experience would be translatedinto a rights discourse. Such individuals maythen not know which of the institutions toapproach or, worse, may approach the wrongorganisation, which must then refer the com-plainant to another body. At present the differ-ent institutions are not necessarily located inthe same building or even in close proximity,which creates difficulties when referring com-plaints. The complainant may well become dis-couraged by the referral or may not understandthe reason for it. Creating one institution willaddress this problem

Fourthly, arguably the most important task ofthe human rights bodies is to assist those whowould not otherwise be able to do so, toenforce their rights by legal action, if necessary.Currently with the exception of the HumanRights Commission, these institutions are noteffectively fulfilling this task. Moreover, a com-bination of geography and capacity frustratesready access by the poor and marginalised indi-viduals to these institutions. This is an unten-able situation that could partly be addressed byan umbrella human rights commission of SouthAfrica, with offices across the country.

Lastly, the various bodies (with the exception ofthe National Youth Commission) are all account-able to the National Assembly and report to theNational Assembly about their activities. Thisprocess is not always satisfactory. By amalga-mating the five bodies into one, it would sim-plify the oversight task of the NationalAssembly and would, in turn, enhance the levelof parliamentary oversight provided. A singlebody will also be able to engage with theNational Assembly in a more coherent and con-sistent manner.

There is the fear that other more powerfulinterests will swamp a particular interest group.However, the primary objective of a singlecommission is not to represent interest groupsor to give them a voice - this is the function ofcivil society organisations – but rather to act asa vehicle to promote change and, where appro-priate, assist individuals to assert their rights. Itis important to ensure, however, that the dis-crete elements are not submerged.

A single human rights commission’s essentialrole will be to promote a human rights culturein its broadest sense, vindicate the rights of cit-izens, ensure that resources are focused on themost important strategic issues and whereverpossible be involved in policies relating tohuman rights. Furthermore, having commis-sioners with responsibilities for specific issues(for example, a commissioner for genderequality and a disability commissioner) will fur-ther allay fears of marginalisation.

A single body will bring many important benefits:13

1. A single organisation will be a strong andauthoritative champion for equality andhuman rights. The new body will incorporatethe expertise on specific areas of humanrights, now spread across bodies, and willthus be better able to respond to the myri-ad human rights challenges in South Africa.

2. The interdependence and interrelatednature of human rights means that a singlebody is better placed to tackle barriers andinequalities affecting several groups, and toidentify and promote strategic solutions toaddress endemic human rights abuses.

3. A single commission will benefit individualsseeking advice and support on all discrimi-nation issues and will provide informationon human rights in an accessible and user-


13 See also “Fairness for All: A new Commission for Equality and Human Rights”, White Paper presented to British Parliament in May 2004 pp 16-18.

friendly way. Providing a single point of con-tact for individuals and for the agencies andorganisations to which they turn for advicewill deliver real benefits for everyone.

4. A single commission will be able to developand implement policies and approaches thatwill better address the reality of the manydimensions of oppression often experiencedby the same person. It will therefore be ableto tackle systemic discrimination suffered bysome people on multiple grounds.

5. A single commission will be more effectiveat promoting improvements to the deliveryof public services. It will provide guidanceand support on human rights good practiceand compliance, and can adopt a cross-cut-ting seamless approach to the full breadth ofhuman rights issues on a sector-by-sectorbasis with, for example, health authorities,local government and education providers.

6. A single commission will also provide anopportunity to pursue a more coherentapproach to enforcing the provisions of thePromotion of Equality and Prevention ofUnfair Discrimination Act and, once they arebrought into effect, the promotional aspectsof that legislation.

7. A single commission will combine thestrengths of the existing commissions withthe expertise from key organisations repre-senting the new equality strands, identifyingand promoting creative responses to thechallenges and opportunities it will face.

8. A single commission will be better equippedto interact with civil society organisationsand to work with them to promote and pro-tect human rights.

The Committee envisages that the newCommission on Human Rights and Equality willbe more than the sum of its parts. It will be acentre of excellence, in research and knowl-edge, across the full breadth of its equality andhuman rights spectrum. It will be able to gen-erate cross-strand learning and informationsharing, applying principles and advances inone area of human rights work to others, anddelivering this in a coherent and integratedway. It will become the focus of a more infor-mal non-court driven process to realise andprotect human rights and could play a pivotalrole in the promotion and protection of humanrights in South Africa.

In order to address the challenges of a multi-plicity of human rights bodies, to give effect tothe principles elaborated above, and to lever-age the benefits of a single human rights body,the Committee recommends as follows:

a) The Committee proposes the establishmentof a strengthened, highly organised and uni-tary body, called the South AfricanCommission on Human Rights and Equalitythat will be better equipped to deal with themany challenges in promoting and protect-ing human rights in South Africa.

b) This newly established Commission shouldinclude the current Human RightsCommission, the Commission for GenderEquality, the Commission for the Promotionand Protection of the Rights of Cultural,Religious and Linguistic Communities(including the Pan South African LanguageBoard) and the National Youth Commission(including children’s rights). The inclusion ofthese institutions is elaborated in the chap-ters dealing specifically with the relevantinstitution.


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c) The Committee highlights that this umbrellahuman rights commission should have ded-icated commissioners for each of the follow-ing areas: gender, children and youth andpeople with disabilities.

d) Furthermore, there should be a dedicatedinformation commissioner.

e) This body must be well funded and must havethe necessary legal power not only to promotehuman rights and address systemic violationsof rights, but also to operate as an advice cen-tre for the millions of people in South Africawho otherwise would not have been able tochallenge a breach of their rights.

The Committee notes that the process of amal-gamation will neither be easy nor speedy.Apart from the National Youth Commission,these bodies are established by theConstitution and amalgamation thus requiressignificant constitutional amendment. In orderfor such amendment to be effected, Parliamentand the Executive must give it due considera-tion.

The Committee also notes that each of theexisting institutions currently employ full-timecommissioners as well as relatively large staff

complements and that any amalgamationwould have to take cognisance of this fact.However, it is in the interest of all SouthAfricans that an amalgamation of institutions isfinalised within a reasonable period. To thisend the Committee further recommends that -

f) A task team be set up to explore the modal-ities of an amalgamation of the five bodiesmentioned and to report to the NationalAssembly on its findings. The aim of thisreport must be to provide a roadmap thatwould guide amalgamation of the bodieswithin a reasonable period;

g) This task team to consist of the heads of allthe bodies involved in the amalgamationalong with a number of Members of theNational Assembly nominated by theSpeaker and proportionally representing thevarious political parties;

h) This task team to report to the NationalAssembly within 12 months after theCommittee’s report is adopted.



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CHAPTER 3

1. Background

As the interim Constitution was being discussedand debated, all parties involved in the multi-party negotiation process recognised the needfor the establishment of certain key institutions.There was clear recognition that the legitimacyof the new democratic order would depend onthe success of the first democratic elections.There was broad agreement that an independ-ent electoral commission was essential to con-ducting free and fair elections successfully.Accordingly, the Electoral Act 150 of 1993 wasenacted. Sixteen high-profile individuals(eleven local and five from abroad) wereappointed as commissioners.

The mandate of this Commission was to con-duct South Africa’s first fully democratic elec-tions, at the national level for both chambers ofParliament (the Senate and the NationalAssembly) and at the provincial level for thelegislatures of the nine new provinces.Elections were held from 26-29 April 1994under a system of proportional representationwith party lists. The newly constituted Parlia-ment had a special mandate to sit as aConstitutional Assembly and draft a finalConstitution for the Republic of South Africa.The Constitution adopted on 8 May and amend-ed on 11 October 1996 replaced the interimConstitution of 1993, and provided for theestablishment of a new permanent ElectoralCommission as one of six state institutions sup-porting constitutional democracy.

When drafting the final Constitution, theConstitutional Assembly noted that mostWestern European countries have their electionauthority located in a government ministry,usually the Ministry of the Interior. However, asSouth Africa had different democratic assump-tions, the Constitutional Assembly felt that an

independent electoral commission was moreappropriate. It was imperative that SouthAfrica’s Electoral Commission should not onlybe institutionally independent but also be seento be independent and impartial. An electoralcommission that was located in a governmentdepartment would be too close to the seat ofpower.

In addition, the Constitutional Assembly recom-mended that the electoral authority be estab-lished in the Constitution. However, as it wouldbe difficult to specify all requirements of anelectoral commission in a sustainable mannerand regular amendment of the Constitutionwould not inspire confidence or stability, it wasagreed that the Constitution should provide abasic framework. Matters of detail should becovered in the general election laws (statutes,regulations and proclamations).

2. Constitutional and legal mandate

Section 190(1) of the Constitution sets out thefunctions of the Electoral Commission, whichare to manage elections of national, provincialand municipal legislative bodies in accordancewith national legislation, ensure that such elec-tions are free and fair and declare the results ofsuch elections within a period of time pre-scribed by national legislation but which is asshort a time as reasonably possible.Accordingly, the Electoral Commission Act 51 of1996, which came into force on 17 October1996, provides for the establishment and com-position of an Electoral Commission to manageelections for all three spheres of governmentand for referendums.

43THE ELECTORAL COMMISSION

CHAPTER 3

THE ELECTORAL COMMISSION

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2.1. POWERS AND FUNCTIONS

The Commission is assigned a wide array ofpowers and functions that are executive,administrative, quasi-judicial, regulatory, edu-cational and advisory in nature. Section 190 ofthe Constitution sets out the Commission’s corefunctions, namely to:

1. Manage elections of national, provincial andmunicipal legislative bodies in accordancewith national legislation.

2. Ensure that these elections are free and fair.

3. Declare the results of such elections withinthe prescribed period.

The Electoral Commission Act, 1996, providesthe Commission with further powers and func-tions that include:

1. Promoting conditions conducive to free andfair elections.

2. Promoting knowledge of sound and demo-cratic electoral processes.

3. Compiling and maintaining voters’ rolls bymeans of registering eligible voters.

4. Compiling and maintaining a register ofpolitical parties.

5. Establishing and maintaining liaison and co-operation with political parties.

6. Undertaking and promoting research intoelectoral matters.

7. Developing and promoting the developmentof electoral expertise in all spheres of gov-ernment.

8. Continuously reviewing legislation, and pro-posed legislation and making related recom-mendations.

9. Promoting voter education.

10.Promoting co-operation with and betweenpersons, institutions, governments andadministrations.

11.Adjudicating disputes that are of an admin-istrative nature relating to the holding ofelections.

12.Appointing appropriate public administra-tions to conduct elections when necessary.

Section 23 of the Electoral Commission Act,1996, empowers the Commission to make reg-ulations, which may prescribe penalties of afine or imprisonment not exceeding two years,regarding -

1. Time limits and the manner in whichappeals and reviews may be brought to theCommission.

2. The voters’ rolls.

3. The registration of parties.

4. The conduct of persons, parties and candi-dates in so far as such conduct may promoteor inhibit the conduct of a free and fair elec-tion.

5. The holding of referendums.

The Electoral Act 73 of 1998 regulates in detailthe duties of the Commission and the ChiefElectoral Officer in respect of -


1. The compilation and maintenance of anational common voters’ roll.

2. The proclamation and preparation for elec-tions.

3. The management of national and provincialelections, as well as the determination anddeclaration of results.

4. The system of objections and appeals.

Various other Acts are also applicable. The LocalGovernment: Municipal Structures Act 117 of1998 and the Local Government: MunicipalElectoral Act 27 of 2000 provide for the appro-priate electoral systems for local governmentelections, and their regulation. Section 4 of theLocal Government: Municipal Electoral Act,2000, states that the Commission must admin-ister the Act in a manner conducive to free andfair elections. The Act also regulates the man-agement of the two separate electoral systemsestablished for metropolitan and local munici-palities on the one hand and district municipal-ities on the other hand; the nomination of wardcandidates and the election procedures con-cerning ward elections; and the election proce-dures for district councils.

The Commission also participates in the delimi-tation of municipalities into wards. The LocalGovernment: Municipal Structures Act, 1998,requires that the Demarcation Board for thepurposes of an election delimit all municipali-ties that must have wards into wards, after con-sulting with the Commission. In addition, sec-tion 23 of the Local Government: DemarcationAct, 2000, requires that the Commissionexpress its view on the effect of a boundary re-delimitation on the representation of voters inthe affected councils. Depending on theCommission’s view in this regard, the delimita-

tion may come into effect at the next GeneralElection.

In addition, in terms of the Public Funding ofPolitical Parties Act 103 of 1997, the Commis-sion is responsible for managing and adminis-tering the Represented Political Parties’ Fund inrespect of the parties participating in nationaland provincial legislatures.

3. Findings

In response to the questionnaire it had circulat-ed, the Committee received a written submis-sion from the Electoral Commission. This docu-ment, together with oral and written submis-sions, formed the basis for the Committee’s dis-cussions with the Electoral Commission thattook place on 28 February 2007. In addition,the Commission submitted supplementary doc-umentation. The following findings arise fromthese interactions:

3.1. CONSTITUTIONAL AND LEGAL BASIS

a) The Constitution and enabling legislationrefer to the “Electoral Commission” and notthe “Independent Electoral Commission”,which was the name this institution hadunder the Interim Constitution, 1993, andthe Independent Electoral Commission Act150 of 1993. Although the word “inde-pendent” was subsequently specificallyomitted in replacing legislation, it was inpopular use to describe the ElectoralCommission and the Commission decided toretain the adjective as its brand name. TheCommittee is of the view that this should beregularised in subsequent legislation.

b) The Electoral Commission accepts that theprinciples of co-operative government and


C H A P T E R 3

intergovernmental relations contained insection 41(1)(h) of the Constitution apply toit (Annexure 1). However, the Committeeobtained legal opinion to the effect that theConstitutional Court had held in the case ofIndependent Electoral Commission vLangeberg Municipality that while theChapter 9 institutions are organs of state,they do not form part of government.

14

Thisis discussed in greater detail in Chapter 1 ofthis report. Therefore, the Committee sub-mits that relevant provisions of section41(1) of the Constitution relating specificallyto co-operative government and intergov-ernmental relations do not apply to theElectoral Commission (or any of the otherChapter 9 institutions).

c) The Committee highlights that the increas-ing international demand on the servicesand advice of the Electoral Commission is anindication of international recognition of theprofessional status and credibility of theCommission. The Committee congratulatesthe Electoral Commission accordingly.

d) The Commission provides technical assis-tance to a number of electoral managementbodies in other parts of Africa. For example,in support of government initiatives, and byway of bilateral agreements, theCommission has rendered technical, mana-gerial, and logistical support to the electoralcommissions of the Democratic Republic ofthe Congo (DRC), the Comoros, and Lesotho.These activities were funded by theDepartment of Foreign Affairs. The Commit-tee highlights that the enabling legislationdoes not specifically empower theCommission to engage in such activities.However, the Committee notes that theCommission had interpreted its mandate topromote democracy through elections

broadly, so as to allow it to perform suchfunctions.

e) The Committee notes that the role of theCommission on the African continent hasincreased, with requests coming largelyfrom the Department of Foreign Affairs andfrom electoral commissions or similar bodiesin other African states. Although theDepartment of Foreign Affairs funds suchactivities, the Commission acknowledgesthat undertaking such activities neverthelessimpacts on its resources, particularly humanresources. The Committee is concerned atthe lack of discretion to refuse such requestsfrom the Department of Foreign Affairs. TheCommittee is of the view that this lack ofdiscretion may adversely affect the inde-pendence of the Commission from theExecutive.

f) As indicated earlier, the Commission’s dutiesinclude the management of national andprovincial elections, as well as the determi-nation and declaration of results. After hav-ing declared the results, the Commissionnominates persons from official party lists asmembers of the relevant legislature. TheCommittee has noted, however, that innominating the new members, theCommission strictly follows the names ofthe candidates in the order in which theyappear on the party lists. No attempt ismade to ascertain whether the candidatesso nominated are eligible at that time fornomination as members in terms of theConstitution. As a result there have been anumber of instances where candidates uponnomination were not in fact eligible to be sonominated as they still held other posts inthe public domain from which they had notyet resigned. The outcome in such caseswas that the nomination was invalid and the


14 2001 (3) SA 925 (CC),

seat concerned immediately becamevacant. This inevitably causes embarrass-ment in what is a very important publicprocess. The Committee believes that theCommission should develop a mechanism toensure as far as possible that only thosecandidates are nominated to become mem-bers of a legislature who are constitutional-ly eligible for nomination.

3.2. APPOINTMENTS

The Electoral Commission Act, 1996, provides insection 5 that the Electoral Commission consistsof five members, one of whom must be ajudge, appointed by the President on the rec-ommendation of the National Assembly bymeans of a majority resolution. Commissionersare nominated by a committee of the NationalAssembly, proportionally composed of mem-bers of all parties represented in the NationalAssembly, from a list of no fewer than eightrecommended candidates submitted by a highprofile panel constituted for that purpose. Thepanel is composed as follows: The President ofthe Constitutional Court, as chairperson; a rep-resentative from the Human RightsCommission; a representative from theCommission on Gender Equality; and the PublicProtector. The Committee feels that using sucha high-profile panel is cumbersome, expensiveand demanding on the panelists but that theexigencies of democracy require continuedsupport for this process.

The Committee notes that three of the fourpanellists are members of human rights bodies.This is a unique arrangement that is not fol-lowed by any of the other institutions underreview but reflects the special requirements ofthe Commission as far as appointments areconcerned.

No provision is currently made in the enablinglegislation to stagger the appointment of com-missioners, although this would in theCommittee’s view be of great benefit to ensurethe seamless functioning of the Commissionover time.

3.3. PUBLIC AWARENESS

a) The Commission stated that the rate of voterparticipation appears to be declining.However, the Commission contends that adecline in the number of voters is commonas democracies mature. Nevertheless, theCommission has commissioned research toidentify potential areas for improvement (forexample, voters in rural areas require target-ing). The Committee maintains that theCommission is not sufficiently innovative inits approach to voter registration and votereducation. The Committee makes certainspecific recommendations in this regard.

b) The Committee notes that the Commissionkeeps a record of formal complaintsreceived. The Committee suggests that itwould be useful for the number, nature andoutcome of complaints to be reflected in theannual report of the Commission.


a) At present, the Commission accounts to theNational Assembly through its interactionswith the Portfolio Committee on HomeAffairs. The Committee notes that much ofthe Commission’s work impinges on thework of the Department of Justice andConstitutional Development. The Committeeaccordingly suggests that, as appropriate, ajoint meeting of the Portfolio Committees ofHome Affairs and Justice and ConstitutionalDevelopment be held.


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b) The Commission has engaged from time totime with the Standing Committee on PublicAccounts (SCOPA), the Portfolio Committeeon Foreign Affairs and the PortfolioCommittee on Provincial and LocalGovernment on matters relating to theirspecific mandates.

c) However, as is the case with most of theinstitutions under review, the Committeefinds that the involvement of a multiplicityof portfolio committees in conducting over-sight creates an environment in which athorough understanding of the work of theinstitution is easily lost. The Commissionwas not entirely satisfied that the degree ofoversight and accountability is sufficient,and proposed an integrated oversight mech-anism in Parliament. The Committee makesspecific recommendations in Chapter 2 ofthis report in this regard.

3.5. RELATIONSHIP WITH CHAPTER 9AND ASSOCIATED INSTITUTIONS

a) The Commission informed the Committee ofthe creation in 1998 of a voluntary body, theForum of Independent Statutory Bodies(FISB), to –

i. Liase between the various constitutionaland statutory bodies in order to fostercommon policies and practices and pro-mote co-operation;

ii. Share information on developments inthe field of human rights, promote bestpractices, avoid duplications and ‘projecta rational, cost effective human rightsregime in the country’ that would bene-fit the populace; and

iii. Make common representations to gov-ernment on matters of common interest.

b) In addition to the Chapter 9 institutions, theForum included other statutory bodies, suchas the Public Service Commission, the PanSouth African Language Board and theNational Youth Commission. The Forum alsocreated a technical committee consisting ofthe chief executive officers of these bodies.

c) The Committee believes that this body isnow defunct. Unfortunately, over timealmost all of the other statutory organisa-tions have withdrawn from the Forum, sothat only the Chapter 9 institutionsremained. Among the reasons advanced forthe failure of the Forum in this regard is thedisparity of available resources (both humanand material) that has prevented some insti-tutions from being able to collaborate. TheCommittee feels that the creation of theForum was a positive development. TheCommittee makes specific recommenda-tions for the collaboration and co-operationof the institutions under review. In the inter-im, the Committee believes that this bodyshould be revived.

d) It is to the credit of the Commission that itworks extensively with various youth organ-isations to promote voter registration priorto elections. The Committee believes thatsuch activities should not be confined to theperiod preceding an election, but should beplanned and implemented in a sustainedmanner.

3.6. RELATIONSHIP WITH THE EXECUTIVE

The Commission works closely with theDepartment of Home Affairs, particularlyregarding the issuing of identification docu-ments and voter registration. As indicated ear-lier, the Committee feels that the Commissioncould be more innovative in terms of voter reg-istration. At present, we follow the Anglo-


Saxon or common law system of voluntary reg-istration. However, the Committee believes thatthere is nothing to prevent us from exploringthe civil law system of compulsory voter regis-tration as a means of increasing voter registra-tion.

In addition, the Commission engages continu-ously with the Executive on specific matters.For example, the Committee learnt that theCommission engages with the Minister ofEducation on the Commission’s Schools Project;the Minister of Provincial and Local Governmenton establishing electoral units; the Ministers ofDefence and Safety and Security on securityand logistics relating to elections; and theMinister of Foreign Affairs on the provision oftechnical electoral assistance to other parts ofthe African continent and election observationin other countries.


a) The Commissioners are responsible for poli-cy-making, supervision and monitoring,while the administration and financial man-agement are the responsibility of the ChiefElectoral Officer. In all institutions, there aretensions between policy and operations.However, the Committee notes that theCommission is currently engaged in the taskof defining the respective roles and respon-sibilities of the Commissioners and the ChiefElectoral Officer.

b) The Committee commends the Commissionfor having developed a code of conduct forstaff and Commissioners. The Committeehowever stresses the importance of fullcompliance with the provisions of section9(1)(b) of the Electoral Commission Act thatrequires that the Commissioners, if appoint-

ed in a full-time capacity, serve as such tothe exclusion of any other duty or obliga-tions or the holding of any other office,unless expressly authorised to do so by thePresident. The Committee is not convincedthat the Commission has paid sufficientattention to this legal obligation, particularlyas conflicts of interest may arise.

c) The Committee is satisfied that theCommission adequately coordinates theactivities of its provincial offices. In thisregard the Committee notes that all provin-cial offices submit monthly reports to HeadOffice, and the provincial managers reportdirectly to the Chief Electoral Officer. Theprovincial offices also use information tech-nology systems extensively to communicatewith each other.

3.8. FINANCIAL ARRANGEMENTS

The Commission informed the Committee thatthere is constant interaction between it andNational Treasury regarding its budget. Thebudget allocation of the Commission is locatedwithin the budget vote of the Department ofHome Affairs. As discussed elsewhere in thisreport, the Committee feels that this arrange-ment impacts negatively on the independenceof the Commission from the Executive.

The Committee refers to the judgement of theConstitutional Court in New National Party vThe Government of the Republic of South Africaon the independence of the Chapter 9 institu-tions.

15

The judgement also spelt out the roleof the Executive and Parliament in upholdingthat independence, particularly regarding theinadequacy of the budgetary arrangements.The Committee discusses the principle of inde-pendence, and the Constitutional Court’s judge-ment in the New National Party case, in greater


C H A P T E R 3

15 CCT 9/99

detail in Chapter 1 of this report and makesspecific recommendations regarding the budg-etary arrangements of the institutions underreview in Chapter 2 of this report.

The Committee notes that, while theCommission is funded mainly by way of directtransfer from the Department of Home Affairs,additional transfers are received from theAfrican Renaissance and International Co-oper-ation Fund, which is administered by theDepartment of Foreign Affairs, for electionassistance in Africa.

The Commission’s budget allocation and spend-ing fluctuate, but appear to increase substan-tially at the time of a general election. Forexample, in the 2005/2006 financial year theElectoral Commission’s budget increasedsharply to R979 million to fund the local gov-ernment elections that took place in March2006.

Table 1 gives a financial summary for theElectoral Commission for the period2003/04 to 2009/10.

16

4. General Conclusions

a) The Committee believes that the currentconstitutional and legal mandate for theElectoral Commission is suitable for theSouth African environment. However, thelegal basis for the Commission’s increasinginternational role, particular in the restAfrica, should be established.

b) The Committee finds that the consumptionof resources by the Electoral Commission iscommensurate with its roles and functions.

c) At first sight it may appear inappropriate tohave special arrangements for the appoint-ment of Commissioners, but after due con-sideration the Committee believes it properto maintain the present arrangements. TheCommittee makes recommendations toenhance consistency, coherence andaccountability in Chapter 2 of this Report.

d) The institutional governance arrangementsof the Electoral Commission require refine-ment, particularly regarding the delineationof the powers, roles and functions betweenthe Commissioners and the Chief ElectoralOfficer and compliance of full-time


16 National Treasury (2007) Estimates of National Expenditure and the Commission’s submission to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Total Revenue* 660 062 538 126 979 457 512 340 485 755 894 363 813 020

Total Expenses 612 914 593 876 925 626 536 443

Surplus/ (Deficit) 47 148 (55 750) 53 831 (24 103)

* This includes the baseline parliamentary allocation, as well as other income in the form of interest received and sponsorship income.

Commissioners with section 9(1)(b) of theElectoral Commission Act which requiresthat Commissioners seek permission fromthe President to undertake outside work orto hold any other office.

e) The Committee highlights the need toreconstitute the Forum of IndependentStatutory Bodies to improve coordinationbetween Chapter 9 and associated institu-tions.

f) The Electoral Commission should also devel-op more innovative ways to increase voterregistration and enhance voter education.

g) The parliamentary mechanisms for oversightof the work of the Electoral Commission andengagement with the reports of theCommission are inadequate. Specific rec-ommendations for improvement are madein this chapter. Furthermore, the Committeemakes general recommendations for theimprovement of the oversight and account-ability mechanisms that would apply to allthe Chapter 9 and associated institutionsunder review in Chapter 2 of this report.

h) Although the Commission is satisfied withthe present budgetary arrangements, theCommittee believes it necessary that theprocess for the development of its budgetshould follow the process identified inChapter 2 of this report.

i) The discrepancy between the Commission’spreferred name of “Independent” ElectoralCommission and its actual name in law,namely the “Electoral Commission” shouldbe regularised at an appropriate time.

5. Recommendations

The Committee makes the following recom-mendations to improve the effectiveness andefficiency of the Electoral Commission:

a) The legal mandate for the ElectoralCommission to conduct international workmust be clearly established. Furthermore, interms of its international work, theDepartment of Foreign Affairs should givetimely notice of the intended participation ofthe Electoral Commission in foreign electionprocesses in order to provide theCommission with adequate time to plan forits involvement. It appears that theCommission feels compelled to accept theseinvitations. The Commission should alsohave and exercise the right to choose whichinvitations it would accept.

b) The Commission should develop a mecha-nism to ensure as far as possible that, afterhaving declared the result of an election,the candidates it nominates from party listsfor appointment to the relevant legislatureare indeed eligible at that time to becomemembers of that legislature in terms of theConstitution.

c) In the interests of improving co-ordinationbetween Chapter 9 and associated institu-tions, the Committee recommends that, asan interim measure, the reconstitution andrevitalisation of the Forum of IndependentStatutory Bodies, a voluntary organization,and full participation in the forum by allChapter 9 and associated institutions shouldbe actively encouraged.

d) The Electoral Commission should also devel-op more innovative ways to increase voterregistration and enhance voter education.


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This should include consideration of theapplication of the “continental” approach tovoter registration whereby automatic regis-tration is integrated with registration forother government services such as pen-sions, housing, tertiary education and rev-enue collection. Collaboration with the pri-vate sector including amongst others, bank-ing institutions and real estate agenciesshould also be explored for this purpose.

e) Mechanisms to improve the relationship andinteraction between Parliament and theCommission should be clearly established.The oversight and accountability of theElectoral Commission should be conductedby the National Assembly through thePortfolio Committee on Home Affairs, as isthe current situation. The role of the pro-posed Unit in the Office of the Speaker ofthe National Assembly discussed in Chapter2 of this report should also be considered inthis regard.

f) The budget process and location of theCommission’s budget allocation should berevised in accordance with the recommen-dations of the Committee in Chapter 2 ofthis report.

g) The Commission should publish the number,nature and outcomes of complaintsreceived, as well as any recommendationsmade to Parliament and their outcomes aspart of its annual report.

h) The Commission should speed up theprocess of defining the roles, powers andfunctions of Commissioners and the ChiefElectoral Officer.

i) The Commission should ensure stringentcompliance with the provisions of section9(1)(b) of the Electoral Commission Act 51of 1996 requiring that Commissioners seekpermission from the President to hold anoutside office or perform any other extrane-ous obligation or duty. Furthermore, thedirectorships, partnerships and consultanciesof Commissioners and senior officials mustbe disclosed in a special annual publication.In addition, the disclosures of pecuniary andother interests of Commissioners and staffmembers must be kept available in a regis-ter and an indication must be made in theannual report of where such information isavailable. General recommendations aremade in this regard in Chapter 2 of thisreport.

j) In common with all the proposals, the termsof office of Commissioners should be stag-gered. This is also a very small Commission.As a result, it may be necessary to increasethe size of the Commission.

k) The discrepancy between the name of theCommission preferred by the Commissionitself and its actual name in law should beregularised in subsequent legislation.



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CHAPTER 4

1. Background

The Financial and Fiscal Commission is auniquely South African contribution to gover-nance. South Africa is a unitary state with threespheres of government: local, provincial andnational. These three spheres must operatewithin an existing tax (and public expenditure)regime that has been designed so that the bulkof revenue collection occurs at the nationallevel. The Constitution requires that a systembe put in place to ensure an equitable andtransparent division of revenue between differ-ent spheres of government.

Certain revenues may be generated at theprovincial and local levels. While the nationalsphere of government raises the bulk of rev-enues, its expenditure responsibilities are lowerthan those of the provincial and local spheresof government, located closer to the recipientsof services. This mismatch between revenueraised and expenditure responsibilities isknown as vertical fiscal imbalance.

Financial imbalances exist between theprovinces, and also between localities withinprovinces. Such differences in expenditureresponsibilities and existing (and potential) rev-enue sources among the different provinces arecommonly referred to as horizontal fiscal imbal-ance.

A system of intergovernmental fiscal relationshas the potential for political manipulation,unless it is based on equity, which in turn isinformed by sensible, reasonable, objective andquantifiable criteria. In addition, it is highlydesirable to have an impartial and independentinstitution to ensure that the system that isdeveloped and implemented contains thesecharacteristics.

There was agreement among the constitutionalnegotiators to create a Financial and FiscalCommission to assist with the revenue-sharingprocess between the different spheres of gov-ernment. The Financial and Fiscal Commissionwas, therefore, created to make recommenda-tions to all legislative authorities and otherentities regarding the financial and fiscalrequirements of the three spheres of govern-ment concerning matters such as revenue shar-ing, financial allocations, taxation, borrowingand criteria to be considered in determining fis-cal allocations.

The Committee accepts that the Commission isan important advisory body that strengthensthe fabric of our constitutional arrangements.Although the Commission is not a Chapter 9institution, it is entrenched in Chapter 2 of theConstitution and, therefore, enjoys status andprotection under the Constitution.

The Commission plays an important part in thestrategic evolution of intergovernmental fiscalrelations, as well as in assisting in maintainingthe balance between fiscal decentralisation andthe unitary state. The Commission sees itself asnot only having a role in influencing the fiscalsystem, but also in facilitating its long-termsustainability.


The 1993 Constitution established a Financialand Fiscal Commission, and provided that thefirst appointment of members to theCommission had to be effected within 120 daysof the passing of the Constitution. Accordingly,on 25 August 1994, the President announcedthe appointment of the first such Commission.

The Commission’s objectives and functions as

55THE FINANCIAL AND FISCAL COMMISSION

CHAPTER 4

THE FINANCIAL AND FISCAL COMMISSION

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contained in the 1993 Constitution were toapprise itself of all financial and fiscal informa-tion relevant to national, provincial and localgovernment, administration and developmentand, on the basis of such information, to renderadvice and make recommendations to the rel-evant legislative authorities regarding thefinancial and fiscal requirements of the threespheres of government, including -

a) Financial and fiscal policies,

b) Equitable financial and fiscal allocations tothe national, provincial and local govern-ments from revenue collected at the nation-al level,

c) Taxes, levies, imposts and surcharges that aprovincial government intends to levy,

d) The raising of loans by a provincial or localgovernment and the financial norms appli-cable, and

e) Criteria for the allocation of financial and fis-cal resources.

The 1993 Constitution did not describe theCommission as independent in quite the samemanner as is found in the 1996 Constitution.Nevertheless, the 1993 Constitution requiredthat Commissioners performed their duties fair-ly, impartially and independently, and it was anoffence to influence a member of theCommission to act otherwise. Commissionerswere also protected from removal from officeon arbitrary grounds. Only the President waspermitted to remove commissioners, and onlyon the grounds of misconduct, incapacity orincompetence.

Sections 220, 221 and 222 of the 1996Constitution confirm the Commission’s contin-

ued existence as an independent and impartialbody subject only to the Constitution and thelaw. Unlike the 1993 Constitution, the 1996Constitution does not set out detailed provi-sions relating to the Commission’s objectivesand functions, instead providing for the promul-gation of national legislation to deal with suchmatters.

The Financial and Fiscal Commission Act 99 of1997, which brought the enabling legislation inline with the 1996 Constitution, providesamong other matters for the Commission’s sta-tus, powers and functions, its composition andits operating procedures. In terms of the legis-lation, the Commission is empowered to act asa consultative body for, and make recommen-dations and give advice to, organs of state inthe national, provincial and local spheres ofgovernment on financial and fiscal matters. Theenabling legislation empowers the Commissionto perform its functions either on its own initia-tive or on the request of an organ of state.

The legislation also restates the constitutionalprovisions relating to the Commission’s inde-pendent status. Therefore, the enabling legisla-tion provides that the Commission is independ-ent and subject only to the Constitution and thelaw, and must be impartial; no person or organof state may interfere with its functioning; andorgans of state are required to assist theCommission in performing its functions effec-tively.

3. Findings

The Committee met with the Commission on 2February 2007. The discussions were informedby the Commission’s written response to theCommittee’s questionnaire. The Commissionsupplemented its response to the questionnaire


with additional information as requested by theCommittee. From these discussions, as well asthe submissions received, the followingemerged:


Section 220(2) of the Constitution guaranteesthat the Commission is independent and is sub-ject only to the Constitution and the law andrequires it to act in an impartial manner. TheConstitution also requires that the Commissionreport regularly to Parliament and to theprovincial legislatures. These provisions arerepeated in the enabling legislation. Therefore,while the Commission is not a Chapter 9 insti-tution, its constitutional and legal position issimilar to that of the Chapter 9 bodies.

3.2. UNDERSTANDING AND INTERPRETATION OF MANDATE

a) The Commission’s understanding of its man-date is that, in essence, it exists to makerecommendations concerning intergovern-mental fiscal relations, both in South Africaand elsewhere on the African continent.The Commission stated that a proper inter-pretation of its mandate requires that itfocus on -

i. Adopting an independent research agen-da, with a strong emphasis on proactiveresearch,

ii. Strengthening its focus on the financialimpact of meeting presidential targets atthe present service delivery rates,

iii. Conducting institutional analysesbetween the spheres of government,especially where there may be a lack oforganisational or institutional capacity,

iv. Developing funding formulas for highereducation, and

v. Offering advisory services on a costrecovery basis.

b) The Committee notes, however, that there isno explicit legal authority that permits theCommission to perform a role in shapingintergovernmental relations outside SouthAfrica. The Committee notes further that thedemand for the Commission’s expertiseelsewhere on the African continent appearsto be increasing. The Committee under-stands that there would be no problem withthe Commission performing such a role onthe African continent, provided that it doesnot detract from its primary responsibilitiesnationally. In this regard, the Committee rec-ommends that the legal mandate to per-form such activities be clarified by legisla-tion.

c) The Committee is not satisfied that theCommission’s mandate permits it to provideadvisory services on a cost recovery basis.Again, while the Committee understandsthe introduction of such a revenue streamfor the Commission, the legal mandate forsuch work must be clarified by legislation.

d) The Committee notes the Commission’s manyinvaluable contributions to the shaping offinancial and fiscal relations in South Africa.For example, the Commission originally pro-posed a framework for intergovernmental fis-cal relations. The Commission also recom-mended that social security grants be anational responsibility, administered throughthe establishment of the national social secu-rity agency to improve efficiency in the regis-tration of beneficiaries and the administrationof grants. A further example is that of the


C H A P T E R 4

costed norms approach to the allocation ofprovincial equitable shares based on the cost-ing of services that provinces are obliged todeliver in terms of national policy, legislationand the Constitution as an alternative to thepresent transfer system that does not takeinto account all relevant factors in determin-ing normative expenditure. While the propos-al was not accepted, it led to widespreaddebate.

e) The enabling legislation is very clear as tothe Commission’s advisory role. Section 3(1)of the Financial and Fiscal Commission Actrefers to the Commission as a consultativebody. Therefore, the Executive is not boundto accept its recommendations.

f) The Committee notes that the Commission’srecommendations enjoy a high degree ofacceptance. The Committee has beeninformed of the effectiveness of theCommission’s recommendations and notesthat, according to the Commission, theNational Treasury accepts approximately 70%of its recommendations. While the Executiveis not bound to accept the Commission’sadvice or recommendations, unlike the otherinstitutions under review, there is a specialprovision that requires that the Executive,through the Minister of Finance, must respondto the Commission’s annual submission of rec-ommendations on the division of revenue andother intergovernmental fiscal matters andprovide reasons for deviations or non-accept-ance of the Commission’s recommendations.

3.3. APPOINTMENTS

a) The Committee notes that there have beena number of constitutional and legislativeamendments to the composition of theCommission and the appointments processfor its Commissioners:

b) Section 200(1) of the 1993 Constitution pro-vided for a Commission composed of achairperson and a deputy chairperson, aperson designated by each of the provincialexecutive councils, as well as sevenCommissioners appointed by the Presidenton the advice of Cabinet.

c) Initially, section 221 of the 1996 Constitutionmade provision for the appointment of 22Commissioners by the President. As the sizeof the Commission was cumbersome, in2001 a constitutional amendment reducedthe number of Commissioners from 22 to 9.The President appoints all Commissioners.

d) The Commission is now composed of achairperson and deputy chairperson, threepersons selected after consultation with thePremiers, two persons selected after con-sulting with organised local government andtwo other persons.

e) The procedures to select and appoint com-missioners to the Commission provide yetanother instance of the enormous variationthat the Committee encountered regardingappointments. At present, Parliament playsno role in the selection and appointment ofCommissioners to the Commission.

f) While the Committee acknowledges that thespecificities of different institutions mayrequire different appointment procedures,the Committee considers that there is meritin applying a similar approach to theappointments of commissioners of theChapter 9 and associated institutions, partic-ularly since the nature of the appointmentsprocedures relate directly to the independ-ence of these institutions.


g) Regarding the appointment procedures per-taining to the Commission, the Committeefinds the selection and appointment ofCommissioners solely by the Executive, aswell as a total lack of parliamentary involve-ment, inconsistent with the principle ofindependence.

h) In this regard, the Committee notes andaccepts the Commission’s submission thatthe appointment process should be similarto that for Chapter 9 institutions, in terms ofwhich the President appoints commission-ers, and does so on the recommendation ofthe National Assembly.

i) The Committee notes that the Chairpersonand Deputy Chairperson are appointed asfull-time Commissioners, while the remain-ing Commissioners are appointed on a part-time basis. The legislation is silent as towhether Commissioners are appointed aspart-time or full-time Commissioners. Itseems to the Committee that there shouldbe clarity on this point.

j) The Committee finds that, given the largelyadvisory nature of the Commission’s work,its present composition is too large. In thisregard, the Committee believes that theappointment of three to five full-timeCommissioners would create a less cumber-some structure, and would considerablyease decision-making and, therefore,increase efficiency.

k) On the issue of provincial representation,the Committee believes that the Commis-sion can take the voice of the provinces intoaccount more systematically by going toeach of the provinces and presenting itsreports. Furthermore, dedicated commis-sioners can be allocated the task of facilitat-

ing relations with the provinces and withlocal government.

l) The Committee notes that such a change tothe appointment and composition of theCommission will require constitutionalamendment.


During its interaction with the Committee, theCommission informed the Committee that itwas still debating on how to engage meaning-fully with the public, as it did not want to beperceived as being a campaigning organisation.This lack of an external communications strate-gy is regrettable. The Committee considers itimportant that the Commission establish mech-anisms for public engagement and input into itsrecommendations. This would facilitate theinclusion of civil society perspectives in devel-oping recommendations for the expenditurepriorities and would enhance the Commission’scredibility and legitimacy. A visible public pres-ence may also lend additional weight in theeyes of policymakers to the Commission’s rec-ommendations.


a) The Committee notes that, as is the casewith some other constitutional bodies, theCommission is not specifically required toaccount to Parliament, but has a constitu-tional and statutory obligation to report reg-ularly to both Houses of Parliament and tothe provincial legislatures.

b) The Committee also notes that theCommission established an office in CapeTown to facilitate its relationship withParliament. Since 2003 the DeputyChairperson of the Commission regularly


C H A P T E R 4

attends relevant parliamentary committeemeetings.

c) However, the Committee believes thatParliament’s engagement with the Commis-sion is still inadequate. In order to facilitateits relationship with Parliament, the Com-mission suggested the establishment of aspecial not parliamentary oversight mecha-nism. The absence of formal protocols alsomakes the relationship with Parliament dif-ficult. The Committee learnt that theCommission has prepared such protocols buthas not identified someone in Parliament tochampion this initiative on its behalf.

d) The Committee accepts that the absence ofa parliamentary mechanism able to facilitateand co-ordinate the Commission’s interac-tions with Parliament creates difficulties.

e) The Commission’s reports on the Division ofRevenue Bill are referred to both Houses ofParliament and then to the Select andPortfolio Committees on Finance, as well asto the Joint Budget Committee. However, itsrecommendations are potentially of rele-vance to a multiplicity of parliamentarycommittees from both Houses of Parlia-ment, depending on the nature of the rec-ommendations. The Commission is called tobrief the specified Committees individuallyon its recommendations, which is enor-mously time consuming.

f) In this regard, the Committee is of the viewthat the proposed unit in the Office of theSpeaker could greatly assist with co-ordinat-ing the interactions between the Commis-sion and parliamentary committees. Thisproposal is discussed more fully and recom-mendations are made in this regard inChapter 2 of this report.


The Committee has learnt that the Executiveaccepts a high proportion of the Commission’srecommendations, which is indicative of theexistence of an effective and co-operative rela-tionship. The effectiveness of the Commission’swork has been explored more fully earlier inthis chapter.

3.7. RELATIONSHIP WITH THE PROVINCES

a) The Committee has been informed that theCommission has a close working relationshipwith the provinces. The Commission hasobserver status at the Budget Council, inwhich it becomes aware of issues emanat-ing from the provinces. The provinces alsoconsult with the Commission on specificmatters. In addition, the Commission visitsall the provinces to inform them of its annu-al recommendations, and some of the workthat it undertakes emanates from the ques-tions raised by provinces.

b) It has been said that there may be somepotential for tension as the Commission istasked with making recommendations onpolicy but is not responsible for the imple-mentation of its recommendations. Thepotential for tension arises when provincesconsider that the recommendations shouldhave a higher status. In this regard, theCommittee believes that it is for theCommission to make it quite clear that it isan advisory body.



a) The Committee notes the absence of anyformal relationships between the Commis-sion and any of the Chapter 9 institutions,although the Commission has established aninformal relationship with the Human RightsCommission.

b) The Commission expressed the view thatthere is no overlap between it and the otherconstitutional institutions being reviewed, asit is the sole institution that advises on inter-governmental fiscal relations in South Africa.However, as the Commission is increasinglyinvolved in service delivery issues as theserelate to the expenditure responsibilities andbudget requirements of the various spheresof government, the Committee is of theview that there is potential for increased co-operation and collaboration between it andthe Chapter 9 and related constitutionalinstitutions, particularly the Human RightsCommission. General recommendations toimprove collaboration and co-ordination ofactivities between the various Chapter 9 andassociated institutions are made in Chapter2 of this report.


a) The Committee finds that the current systemwhereby the President determines theremuneration, conditions of employmentand other benefits of Commissioners takinginto account, among other factors, the rec-ommendations of the Minister of Finance,requires revision.

b) At present, the determination of salaries is a

lengthy process and is the cause of somedissatisfaction among the Commissioners.In this regard, the Committee directs atten-tion to section 219(5) of the Constitutionthat requires the adoption of framework leg-islation to determine the salaries,allowances, and benefits of judges, thePublic Protector, the Auditor-General, andmembers of any commission provided for inthe Constitution. This legislative frameworkhas not yet been enacted. The recommen-dations of the Committee in this regard arecontained in Chapter 2 of this report.

c) The Committee notes that the Chairpersonof the Commission is also its Chief ExecutiveOfficer. While the Committee understandsthat the Chairperson of the Commission con-siders this satisfactory, the Committeebelieves that this creates significant chal-lenges for sound institutional governance,since the directing authority and the imple-menting authority are vested in the sameperson.

d) The Commission has a high staff turnover.The Committee understands that this is aconsequence of the specialist nature of theCommission’s work, which makes theCommission’s staff members highly desir-able to other government departments.Low salary levels for specialist staff also con-tribute to staff turnover. Although theCommission is aware of this problem, theCommittee notes that it does not have astaff retention policy and strategy in place tostem the losses.

e) The Commission informed the Committeethat there have been few significant internalconflicts. Although the Committee learntthat the powers, roles and responsibilities offull-time and part-time Commissioners have


C H A P T E R 4

been determined, these are recorded in theminutes of the inaugural meeting of theCommission’s steering committee in July1996.

f) The Committee believes that a more formaldelineation of the powers, roles and respon-sibilities of Commissioners is required.

g) The Committee learnt that there is no codeof conduct for Commissioners and staff.However, the Commission has mechanismsin place to govern the requirements of dis-closure of financial and other interests,including the disclosure on an annual basis(or whenever circumstances may change)by Commissioners of their business interestswith the Chairperson of the Commission.Such business interests include membershipof other commissions or boards, any busi-ness activities or involvements, as well asinvolvements with any trusts or any otherorganisation. The disclosure extends to othermembers of a Commissioner’s family.However, these disclosures are not readilyaccessible. General recommendations aremade in this regard in Chapter 2 of thisreport.

h) The Committee notes that Commissionersare not permitted to take part in particularactivities of the Commission if they, theirfamilies, life partners or business associateshave a financial interest in those activities.


a) The Committee understands that, althoughthe Commission does not have a separatebudget vote (its budget falls under the votefor National Treasury), the Commission hasalways obtained the funds it has requested.

b) The Committee is, however, of the view thatthe location of the Commission’s budgetallocation within the budget allocation forthe National Treasury could impact nega-tively on the perceived independence of theCommission. It would be important toensure a budget process that enhances theindependence of the Commission. TheCommittee’s recommendations, detailedearlier in this report, regarding the financialarrangements for all the Chapter 9 and asso-ciated institutions under review should beconsidered in this regard.

c) The Commission’s budget allocation for theperiod 2003/04 to 2009/2010 is sum-marised in the table below, as well as itsexpenditure from 2003/04 to 2005/06. TheCommission exceeded its budget allocationin 2003/04, but underspent in 2004/05 and2005/06.

Table1 : Summary of allocations and oper-ating expenses, as well as the allocationsunder the Medium Term ExpenditureFramework

17


17 National Treasury (2007) Estimates of National Expenditure and the Commission’s submission to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Allocations from National Treasury 12 679 17 869 19 660 21 705 20 178 21 125 22 156

Total operating expenses 14 955 16 716 19 019

Surplus/(Deficit) (2 485) 1 552 1 060

4. General conclusions

a) The Committee considers the work of thisCommission to be very valuable for trans-parent financial relations between centralgovernment, the provinces and local gov-ernment. Its relevance may also increase infuture.

b) The Committee considers the appointmentprocedures for Commissioners to be inap-propriate. General recommendations aremade to enhance consistency, coherenceand accountability in Chapter 2 of thisreport. In addition, specific recommenda-tions relating to the Commission are madebelow.

c) The efficiency and effectiveness of the insti-tution could be enhanced if certain institu-tional arrangements are addressed. Theseare elaborated in the recommendations.

d) The Committee finds that public awarenessof, and engagement with, the Commission’swork is inadequate and makes recommen-dations in this regard.

e) The parliamentary mechanisms for oversightof the work of the Commission and engage-ment with the reports of the Commissionare inadequate. The Committee makes gen-eral recommendations for the improvementof the oversight and accountability mecha-nisms that would apply to all the Chapter 9and associated institutions under review inChapter 2 of this report.

f) The budget process and funding model ofthe Commission adversely affects itsaccountability and independence. TheCommittee makes general recommenda-tions in Chapter 2 of this report for the

improvement of the budget process thatwould apply to all the Chapter 9 and associ-ated institutions under review.

5. Recommendations

a) There is a strong argument for theCommission’s continued existence. TheCommission performs an important functionin influencing the fair and equitable verticaland horizontal distribution of resourcesamong the spheres of government. This isan invaluable service, which the Commissionhas performed commendably, particularly inthe early years of our democracy.

b) While, at present, intergovernmental rela-tions in South Africa are stable, in a differentpolitical environment tension between thedifferent spheres of government about theequitable distribution of funds may wellemerge. As such, the Commission may berequired to perform a stabilising role, which itis uniquely positioned to do, as the nature ofthe Commission’s recommendations musttake into account the interests of all spheresof government. The Committee is of the viewthat the Commission should be retained tofulfil its current role, with the institutionalimprovements recommended below.

c) The efficiency and effectiveness of theCommission could be further improved byimplementing the following recommenda-tions:

d) The appointments procedure and budgetarrangements should be reviewed to sup-port further and assert the Commission’sindependence. The Committee makes spe-cific proposals in this regard in Chapter 2 ofthis report.


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e) More specifically, regarding appointments ofCommissioners:

i. Commissioners should be appointed bythe President on the recommendation ofParliament.

ii. The present number of nineCommissioners should be reduced tothree to five full-time Commissioners.

iii. In the meanwhile, there should be clarityconcerning whether Commissioners areappointed on a part-time or full-timebasis.

f) The legislative framework envisaged in sec-tion 219(5) of the Constitution to determinethe salaries, allowances, and benefits ofjudges, the Public Protector, the Auditor-General, and members of any commissionprovided for in the Constitution must beenacted. The Committee makes proposalsin this regard in Chapter 2 of this report.

g) Certain institutional governance matters,such as a conflict resolution policy andmechanisms, a staff retention policy andstrategy and the Commission’s governancemodel should be addressed to improve itsefficiency and effectiveness.

h) Details of directorships, partnerships andconsultancies must be disclosed in theCommission’s annual reports. The pecuniaryand other interests of Commissioners andsenior officials should be disclosed in a reg-ister, and mention should be made in theannual report of where such information isavailable.

i) The legal mandate for the work of theCommission in shaping intergovernmentalrelations in the rest of Africa, as well as theinitiation of cost recovery advisory services,should be clarified.

j) There is room for increased collaborativeand co-operative relations with relevantChapter 9 and related constitutional bodies.In the absence of a formalised mechanismto facilitate such relations, and as an interimmeasure, the Committee recommends thatthe reconstitution and revitalisation of theForum of Independent Statutory Bodies (avoluntary forum which the Committeeunderstands to be at present defunct)should be encouraged.

k) Mechanisms for meaningful public involve-ment and for promoting public awareness ofthe Commission’s work should be estab-lished. The Commission should develop anexternal communications policy and strategyto guide the development of such mecha-nisms.

l) Mechanisms to improve the relationship andinteraction between Parliament and theCommission should be developed. The roleof the proposed unit in the Office of theSpeaker of the National Assembly discussedin Chapter 2 of this report should be consid-ered in this regard.

m)The budget process and location of theCommission’s budget allocation should berevised in accordance with the recommen-dations of the Committee in Chapter 2 ofthis report.



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CHAPTER 5

1. Background

The remit of the Auditor-General is extremelywide. In South Africa, the Auditor-Generalaudits the accounts of every public authorityand any other body that the law prescribes. Theindependent government audit is an importantpart of a democratic system of transparent andaccountable governance. In general terms theaudit is intended to reveal deviations fromaccepted standards and violations of the princi-ples of legality, efficiency, effectiveness andeconomy of financial management earlyenough to allow for corrective action, to makethose accountable accept responsibility, and totake steps to prevent such breaches or at leastmake them more difficult.

18

In short, ‘withoutaudit, no accountability; without accountability,no control; and if there is no control, where isthe seat of power?’

19

Therefore, the justification for an independentpublic auditor lies in the concept of publicaccountability. Accounting officers must annual-ly submit an account to Parliament or the rele-vant legislative authority on what has hap-pened in their departments, or institutions, inthe preceding financial year. Typically thisinvolves some form of audit. The task of theAuditor-General in this process is to provide anindependent investigation and evaluation of, aswell as public reporting on, the financial admin-istration of the executive authority of the pub-lic sector. It is this information that will assistParliament or any other legislative body inexercising its oversight function.

Both here and internationally it is acceptedpractice that Auditors-General can only accom-plish their task effectively and objectively ifthey are independent of the body they aretasked with auditing, and are protected againstoutside influence. Furthermore, the Auditor-

General must not only be independent butmust be seen to be independent. Such inde-pendence is necessary given that the Auditor-General is tasked primarily with auditing theexecutive branch of government, and must befree to report objectively on any shortcomingsin the financial administration of any executiveauthority. Given the power that is concentratedwithin the Executive, there is the accompanyingthreat that this power will be used to interferewith or otherwise adversely influence theactivities of the Auditor-General.

Nevertheless, despite the inherent tension thatthe struggle for independence from Executiveinfluence presents, a degree of co-operation isboth normal and in the best interests of makingthe most efficient use of public funds. Thepractical implementation of any recommenda-tions emanating from an audit is best achievedwith the active participation of the Executive.

The relationship between national audit institu-tions and Parliament is generally co-operativeand complementary, as both ultimately pursuethe same goal. Typically, Parliament has thepower to appropriate budgets but does nothave the necessary resources actively to moni-tor and assess budget implementation.National audit institutions provide independentreports on government’s use of public funds,thereby enhancing parliamentary oversight ofthe Executive.

The Auditor-General as a national audit institu-tion has a long history. It was only in 1989,however, that legislation made separate provi-sion for the Auditor-General and his or her staff.The great defect of this legislation was that theExecutive retained the power of veto on certainadministrative matters relating to the auditoffice, a situation that was contrary to the inter-nationally accepted principle of an independent

67THE AUDITOR-GENERAL

CHAPTER 5

THE AUDITOR-GENERAL

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18 De Loor, J. The Role of the Auditor-General. In J. Gildenhuys (ed) Ethics and the Public Sector. Speeches and Papers presented at the SecondWinelands Conference held at the University of Stellenbosch, 1989.

19 De Loor, J. 1989, p 80

audit institution being required for properaccountability. This placed the Auditor-Generalin the unenviable position of having to reporton the financial affairs of the executive author-ity without fear or favour, while being depend-ent on the goodwill and co-operation of the lat-ter for the procurement of essential resourcesfor carrying out it’s the assigned task.Therefore, concerning the status of the institu-tion of the Auditor-General, its independencewas not recognised, nor was its jurisdictioncomprehensive.

With the establishment of a democracy immi-nent, the apartheid regime passed the AuditArrangements Act 122 of 1992 establishing anoffice of Auditor-General outside of the publicservice and creating for it its own revenue fund.This Act also provided for the transfer of overallsupervision to an oversight body known as theAudit Commission, which was composed main-ly of Members of Parliament.

The Auditor-General Act 12 of 1995 brought thelegislation in line with the provisions of the1993 Constitution. The Public Audit Act 25 of2004 has now replaced both of these Acts,ensuring alignment with the 1996 Constitutionand enhancing the financial and administrativearrangements of the Auditor-General, includingthose concerning accountability to Parliament.


The 1996 Constitution and the Public Audit Act25 of 2004 provide the applicable legal frame-work for the Auditor-General. Section 181 ofthe Constitution affirms the Auditor-General’sconstitutional status, locating the office amongthe State Institutions StrengtheningConstitutional Democracy found in Chapter 9.

The Public Audit Act came into operation in2004, repealing the Auditor-General Act of1995 in its entirety. The Public Audit Act, 2004,provides that the Auditor-General is thesupreme audit institution of the Republic, andrestates the provisions of section 181 of theConstitution, confirming that the Auditor-General is independent and subject only to theConstitution and the law, must be impartial andact without fear, favour or prejudice and isaccountable to the National Assembly.

Section 188 of the Constitution provides thatthe Auditor-General must audit and report onthe accounts, financial statements and financialmanagement of all national and provincialstate departments and administrations, allmunicipalities, and any other institution oraccounting entity that the Auditor-General isrequired to audit in terms of legislation. Inaddition, the Constitution provides the Auditor-General with the discretionary power to auditand report on the accounts, financial state-ments and financial management of any insti-tution funded from the National or ProvincialRevenue Fund or by a municipality, or any otherinstitution that is authorised by law to receivemoney for a public purpose.

The Public Audit Act distinguishes between theAuditor-General’s constitutional and other func-tions. The Auditor-General’s constitutional func-tions require that the Auditor-General performannual mandatory audits of governmentdepartments, administrations, Parliament andthe provincial legislatures, constitutional institu-tions, municipalities, municipal entities and cer-tain consolidated financial statements.

In addition to these mandatory audits, section4(3) of the Act furnishes the Auditor-Generalwith the discretion to audit and report on theaccounts, financial statements and financial


management of public entities and other insti-tutions that meet certain criteria.

The legislation also sets out the Auditor-General’s other functions. Section 5 of the Actempowers the Auditor-General to provide vari-ous audit-related services commonly performedby a supreme audit institution; give advice andsupport to a legislature outside the scope of theAuditor-General’s normal audit and reportingfunctions; comment on a response by an audi-tee to a legislature’s review of an audit report;carry out an investigation or special audit ofany specified institution if the Auditor-Generalconsiders it to be in the public interest or onreceipt of a complaint or request.

In addition, the legislation provides that theAuditor-General may co-operate with persons,institutions and associations, nationally andinternationally; appoint advisory structuresexternal to the administration of the office toprovide specialised advice; and do any otherthing necessary to fulfil his or her role effec-tively.

The Auditor-General provides reliable informa-tion concerning what is described as the man-agement of public funds. While the Auditor-General offers a range of audit services (includ-ing regularity audits and audits of performanceinformation, performance audits, special inves-tigations and sustainable development audits),regularity audits that attest to the quality andreliability of the financial information presentedby government departments are performedmost frequently. It appears to the Committeethat generally the present unreadiness of pub-lic sector departments and entities hamstringsthe Auditor-General’s ability to report on per-formance or non-financial information.

Increasingly, however, this is an area of report-ing that has potential for growth and for provid-ing information regarding the extent to whichpublic sector institutions are providing servicesin a cost effective way. The focus areas of suchperformance audits are increasingly based onthe strategic service delivery areas of govern-ment.

3. Findings

The Committee received written submissionsfrom the Auditor-General in response to thequestionnaire that was circulated. This docu-ment, supplemented by various submissions,formed the basis for the discussions that tookplace between the Committee and the Auditor-General on 14 March 2007. The Auditor-General also supplied further supplementaryinformation at the request of the Committee.From these the Committee finds as follows:


3.1.1. Independence

a) The Committee finds that the Constitutionand the enabling legislation provide theAuditor-General with the requisite legal pro-tection from external interference. Section181 of the Constitution guarantees theAuditor-General’s independence, while thePublic Audit Act, 2004, restates the constitu-tional provisions concerning independence.In addition, the constitutional and statutoryframework contains provisions that areaccepted markers of independence. TheConstitution sets out special procedures tosafeguard the Auditor-General’s tenure andmakes his or her dismissal only possible onthe grounds of misconduct, incapacity orincompetence.


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b) The Constitution also stipulates specialmajorities for both the Auditor-General’sappointment and removal from office. Theappointment of the Auditor-General requiresapproval by the National Assembly by a res-olution adopted with a supporting vote of atleast 60 percent of the members of theNational Assembly. In order to dismiss theAuditor-General from office, a resolutionadopted with a supporting vote of at leasttwo-thirds of the members of the NationalAssembly is required.

c) Furthermore, as the office of the Auditor-General finances its operations through auditfees, it is financially independent of theExecutive.

d) As power can never be wholly unfettered,the Committee notes that the Constitutionand the enabling legislation charge certainbodies with internal and external oversightof the Auditor-General:

i. Internal oversight is achieved through anaudit committee, established by section40 of the Public Audit Act, 2004. Themembers of the audit committee areappointed by the Deputy Auditor-Generalin consultation with the Auditor-General.The audit committee must consist of atleast three persons, the majority ofwhom are not in the employ of theAuditor-General. Specifically, the chair-person of the audit committee must notbe employed by the Auditor-General andmust be independent, knowledgeable ofthe status of the position, have the req-uisite business, financial and leadershipskills, and must not be a political office-bearer.

The audit committee has key financialoversight responsibilities that typicallyaccrue to audit committees, includingthat of commenting in the annual reporton the effectiveness of internal control,as well as evaluating the Auditor-General’s annual financial statements. Itcan make recommendations to theAuditor-General, to the external auditorand to the National Assembly’s StandingCommittee on the Auditor-General, ifnecessary.

ii. In terms of the Constitution, the Auditor-General is accountable to the NationalAssembly. The Standing Committee onthe Auditor-General was established interms of section 10(3) of the Public AuditAct as a parliamentary oversight mecha-nism for the Auditor-General. ThisStanding Committee replaces the previ-ous Audit Commission, and is a multi-party committee that exercises oversightresponsibilities that focus on perform-ance, appointments and the nature andscope of the audits performed by theAuditor-General, including consultationon its fee structure. In collaboration withthe Auditor-General, the StandingCommittee is currently reviewing theOffice’s governance model, as well asconsidering the remuneration, benefitsand conditions of service for the Auditor-General. The Standing Committee reportsto the National Assembly.

3.1.2. Appointments

a) As identified earlier in this report, theCommittee finds that there is no uniformprocedure for the appointment of office-bearers to the Chapter 9 and associatedinstitutions.


In the case of the Auditor-General, thePresident appoints the Auditor-General onthe recommendation of the NationalAssembly with a supporting vote of at least60 percent of the members of the NationalAssembly. The Public Audit Act tasks theSpeaker of the National Assembly with initi-ating the process of appointing the Auditor-General as contemplated in section 193 ofthe Constitution. A committee of theNational Assembly nominates a candidatefor appointment and makes recommenda-tions on the conditions of employment.

b) The Committee also notes that section 193of the Constitution provides criteria forappointment as Auditor-General: The incum-bent must be a man or a woman who is aSouth African citizen, and is fit and proper tohold that office. In addition, due regardmust be given to specialised knowledge ofor experience in auditing, state finances andpublic administration.

c) The Auditor-General is appointed for a fixednon-renewable term of office of betweenfive and ten years in terms of the Constitutionboth the previous and present Auditors-General were appointed for seven years.

d) Given the enormously important role thatthis Office plays in enhancing the financialaccountability of the public sector, theCommittee finds that it is essential to ensurethat appointments occur in a timely fashionso as to ensure continuity, as well as toallow for the transfer of institutional memo-ry. While the existence of a dedicatedStanding Committee will obviously assist inthis regard, the Committee believes that theproposed unit in the Office of the Speakerwill be well placed to initiate and overseethe practicalities that accompany thisprocess.

3.2. INTERPRETATION OF CONSTITUTION-AL AND LEGAL MANDATE

a) As previously mentioned, the Committeenotes that at present the Auditor-Generalperforms mostly regularity audits, whichentails reporting on whether the financialstatements fairly represent, in all materialaspects, the financial position and theresults of the operations for a given financialyear. In this regard, the Committee under-stands that the nature of public sector auditsrequires the Auditor-General to report moreextensively than the private sector on thedetail and nature of financial managementshortcomings, and the root causes thereof,in order to enable stakeholders to managepublic resources better.

b) In common with the majority of the Chapter9 bodies, the enabling legislation does notgive the Auditor-General authority to makebinding decisions. Thus, to some extent theAuditor-General must rely on the co-opera-tion of government departments to acceptand act on recommendations contained inthe audit reports. In this regard, the Auditor-General is also assisted by the oversightfunction of parliamentary committees, par-ticularly the Standing Committee on PublicAccounts (SCOPA). The Committee notesthat the Auditor-General regularly submitsreports addressing recommendations toParliament. However, the lack of imple-mentation of the recommendations con-tained in these reports by affected depart-ments is a cause for concern. TheCommittee was made aware that some gov-ernment departments have received quali-fied audits for a number of years. TheCommittee suggests that the Auditor-General should make special reports toParliament in such circumstances, whichshould result in debates in Parliament. The


C H A P T E R 5

Committee believes in publicity as a meansof enforcement.

c) The Committee notes that there are a num-ber of other audit services that the AuditorGeneral can provide, including particularlyperformance auditing, which entails evalu-ating how economically resources were pro-cured, as well as the efficiency with whichthey were used.

d) Although at present the procedures and sys-tems of most government departments arenot sufficiently developed to allow for per-formance audits, the auditing of perform-ance information is being phased-in in somedepartments. Given that the Auditor-Generalintends eventually to conduct performanceaudits for all government departments, theCommittee highlights the need to build thecapacity of the office of the Auditor-Generalfor this purpose. This will require a system-atic review of resources, including person-nel. The Committee is also aware that themost effective use of the information con-tained in the performance audits will requirethat the report provided to parliamentarycommittees is timely.

e) Moreover, the Committee emphasises thatParliament should establish mechanisms toensure the systematic, comprehensive andefficient processing of performance auditreports. These would be very different to thepresent regularity reports, and the capacityof the Standing Committee on PublicAccounts and the relevant portfolio commit-tees will require strengthening in order todeal with these reports effectively.

f) The Committee finds that the Auditor-General performs extensive audit services ofan international nature. For example, the

Auditor-General is involved in developingfinancial management and accountabilitymodels in the public sector in parts of Africa.In addition, the Auditor-General has auditedthe World Health Organisation and theUnited Nations Industrial DevelopmentOrganisation, and is presently auditor to theUnited Nations Organisation itself. Thesecontracts have been obtained competitivelyand are evidence of the Auditor-General’sgood standing and professionalism.

g) Nevertheless, it is cause for concern that theenabling legislation does not specificallyallow the Auditor-General to do this kind ofwork. At present the Auditor-General relieson section 5(1)(a) of the Public Audit Act asthe legal basis for its international work.The section, which is referred to earlier, pro-vides that the Auditor-General may for a feeand without compromising the role of theAuditor-General as an independent auditor,provide audit related services to an auditeeor other body, which is commonly per-formed by a supreme audit institution.

h) The Committee is not satisfied that interna-tional audit work can be regarded as workcommonly performed by a supreme auditinstitution established for a national purpose.

i) The Committee finds that only 5% of theAuditor-General’s resources are allocated tothese international services. This is a figurethat the Auditor-General has determinedwill not compromise its efficiency or put astrain on resources. The Committee accept-ed that these international services also cre-ate opportunities or incentives that attracttrainees and experts, who might otherwisechoose to work within the private sector.While the Committee finds that the interna-tional work of the Auditor-General does not


negatively affect its national responsibilitiesand provides the office with a number ofimportant benefits, the present lack of alegal mandate to perform such work isunsatisfactory and should be clarified.


a) Many South Africans, including those inpositions of leadership, are not fully awareof the important work of the Auditor-General. The Committee finds that an unac-ceptable situation. The Committee notesthat the office of the Auditor-General hasidentified the need to inform the public ofits work as a priority and has begun toengage with the media and with civil socie-ty in this regard. In the case of civil society,fostering such relationships may becomeincreasingly important, particularly withregard to issues of corruption.

b) The Committee notes that the Auditor-General has implemented a complaintsmechanism to deal with complaints againstthe Auditor-General. The Committee under-stands that the mechanism is not intendedas a general complaints or reporting hotline,but rather for complaints pertaining to theexercise of powers and the performance ofduties by, and the administration of, theinstitution when performing audits.

c) Nevertheless, the Committee finds the com-plaints machinery to be overly complex,requiring that the complaint be in the form ofan affidavit or affirmation properly commis-sioned by a commissioner of oaths. TheCommittee is of the view that complaintsmechanisms should generally entail a moreaccessible procedure if they are to be effective.


a) The Committee notes that the Auditor-General has a close working relationshipwith National Treasury. For some years theAuditor-General and National Treasury haveheld quarterly meetings on areas of mutualinterest, and hold meetings of a technicalnature on an informal basis. The Committeeaccepts that, given the technical nature ofthe work of the Auditor-General and thekinds of audit information required, the con-tinued close working relationship withnational and provincial treasuries is neces-sary for the Auditor-General to conduct hisor her work effectively and efficiently.

b) The Auditor-General has also informed theCommittee that the office enjoys friendlyand professional relations with all govern-ment departments, Parliament and publicentities in obtaining information. Since thereis a keen understanding of the role of theAuditor-General, bodies being audited alsoappreciate the importance of providing theAuditor-General with adequate and relevantinformation to facilitate a reliable audit out-come.

c) As has been indicated earlier in this Chapter,the Auditor-General cannot make enforce-able decisions and must therefore rely onthe co-operation of government depart-ments to implement any recommendationsthat are made in audit reports. In the cir-cumstances, the extent to which depart-ments fail to implement such recommenda-tions has been noted as a matter for con-cern.


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a) The Committee finds that the Auditor-General has a highly structured relationshipwith Parliament. The Auditor-Generalaccounts to the National Assembly throughthe Standing Committee on the AuditorGeneral, which was established in May 2006as a dedicated committee for this purpose.Despite the fact that the StandingCommittee has only recently been formed, ithas already engaged with the Auditor-General on its strategic plan and budget forthe next three years, as well as its latestannual report. This is similar to the over-sight work of a portfolio committee in rela-tion to a government department. TheAuditor-General and the Standing Commit-tee are in the process of fleshing out theirgovernance relationship. This process is duefor completion by July 2007.

b) In addition, there is a special parliamentarycommittee that oversees the accounts of allgovernment departments and public enti-ties. The Standing Committee on PublicAccounts considers the Auditor-General’sreports and recommendations when exer-cising parliamentary oversight over expendi-ture by government and public entities.

c) The Committee notes that the Auditor-General provides technical support and sec-retarial assistance to the Association ofPublic Accounts Committees, which is anorganisation that aims to empower thePublic Accounts Committees in all ten legis-latures to discharge their oversight dutieseffectively.

d) The Committee notes that the StandingCommittee on Public Accounts is in manyways provided with direct assistance in its

functioning by the office of the Auditor-General. While this is commendable andclearly beneficial for as long as Parliamentcontinues to grapple with capacity prob-lems, particularly in relation to its commit-tees, both Parliament and the office of theAuditor-General should exercise care toobserve the need for them to remain atarms length in the interests of the constitu-tional independence of each. The Auditor-General is after all as an office itselfaccountable to the National Assembly andrelevant committees as occasion demands,and such accountability should not be com-promised by the nature of the day-to-dayco-operation between them.


a) The Committee notes the potential for over-lap between the functions of the Auditor-General and those of the Public Protector.The Public Protector is mandated to investi-gate any conduct in state affairs or in publicadministration in any sphere of governmentthat is alleged or suspected to be improperor to result in impropriety or prejudice, whilethe Public Audit Act empowers the Auditor-General to investigate any body, institution,or entity using public funds if the Auditor-General considers that such an investigationwould be in the public interest, or on receiptof a complaint or request.

b) It was put to the Committee that theAuditor-General does not regard the conductof special investigations as a core function.The Auditor-General does also refer mattersfor investigation to the Public Protector.There is, however, no formal understandingbetween these two institutions regulatingtheir working relationship.


c) The Committee finds that the absence of aformal memorandum of understanding andmechanisms to track and monitor progressof referred matters is of deep concern. TheCommittee recommends that there shouldbe a note in the annual report of each insti-tution on matters referred to the other aswell as the outcome of such cases.

d) When audit work is undertaken, it appearsto the Committee that areas such as condi-tions of service, human resource manage-ment, and codes of conduct create thepotential for overlap between the Office ofthe Auditor-General and the Public ServiceCommission. The Committee learnt that theAuditor-General and the Public ServiceCommission have co-operated successfullyin a number of instances, such as the auditof the interests of public office-bearers andsenior public servants in the public service.

e) The Committee notes that a formal memo-randum of understanding exists betweenthe Public Service Commission and the officeof the Auditor-General. The specific purposeof this memorandum of understanding is toenhance co-operation, efficiency and effec-tiveness and to avoid duplication of func-tions performed by the Auditor-General andthe Public Service Commission. The agree-ment identifies areas of collaboration suchas the sharing of information generally,training, the sharing information on bestpractices and methodologies, the co-ordina-tion of audits and special investigations, andother projects. The memorandum identifiesthe procedures to be followed for purposesof structuring these interactions and pro-vides for contact persons within the respec-tive institutions to facilitate such co-opera-tion and collaboration.

f) The Committee finds that there is immensepotential for enhanced co-operation and col-laboration between the Chapter 9 institu-tions, particularly as the scope of theAuditor-General’s work broadens to includeperformance auditing. Since performanceaudits will include the efficiency and econo-my of service delivery measured againstagreed standards and outcomes containedin strategic and business plans of depart-ments, the potential for overlap with thePublic Protector, the Public ServiceCommission, the Human Rights Commissionand the Financial and Fiscal Commissionbecomes obvious. Recommendations aimedat ensuring effective co-operation and col-laboration are made in Chapter 2 of thisreport.


a) The Committee notes that, while theAuditor-General is in overall control of, and isaccountable for, the administration of his orher office, the internal governance arrange-ments include a number of checks and bal-ances.

b) In addition to the audit committee referredto previously, the Deputy Auditor-General ishead of the administration and is responsi-ble for the administration of the Office.Furthermore, despite the fact that under thelegislation the Auditor-General is the solerepository of legal authority and power, theAuditor-General is empowered to appoint anadvisory committee to assist him or her.

c) The Office of the Auditor-General has provid-ed for the disclosure of interests of bothoffice-bearers and staff. The Committeenotes that the Auditor-General and all staff


C H A P T E R 5

are required by the Code of ProfessionalConduct and Ethics to disclose any direct orindirect relationship or interest that may beregarded as incompatible with, or adverselyinfluencing or impairing, the values andprinciples of the Code. A central register iskept of all reported interests and relation-ships. The Auditor-General is not allowed toperform outside remunerative work or to siton the boards of companies. Staff membersare required to obtain permission to performoutside work and must disclose any involve-ment as directors. The Committee, however,is not satisfied that this register is sufficient-ly accessible to the public. This issue is dis-cussed more fully in Chapter 2 of this report.

d) The Auditor-General identified staff recruit-ment and retention as a constraint. There isa limited pool of chartered accountantsavailable. In addition, the focus on publicsector auditing, together with employmentequity requirements, have placed furtherconstraints on the potential number of char-tered accountants available for employ-ment. The Committee notes that theAuditor-General has initiated a traineeaccountant scheme to increase the pool ofchartered accountants, including a full-timebursary scheme, with the object thattrainees, once qualified, will work for theAuditor-General. In addition, the Auditor-General’s international work is a means ofattracting and retaining staff.

e As in other areas, the recruitment andappointment of staff are determined by thepolicies of the institution, which follow theprovisions of the relevant legislation con-cerning representivity. In this regard, theissue of representivity is enormously impor-tant and special care must be taken in mak-ing appointments, especially at senior level.

3.8 FINANCIAL ARRANGEMENTS

a) Although the legislation provides for thepossibility of Parliament appropriatingmonies for the Office of the Auditor-General,since 1993 no parliamentary appropriationhas been necessary. The Auditor-General isable to generate its own income throughaudit fees.

b) The Committee finds that, among the insti-tutions under review, the Auditor-General isunique in this regard. However, theCommittee notes that the non-payment orlate payment of monthly invoices by audi-tees can result in difficulties with cash flowmanagement.

c) The table below summarises the revenueand expenditure of the Auditor-Generalsince 2003/04.

Table 1: Revenue and Expenditure of theAuditor-General

20


20 Auditor-General, Annual Report 2004/05, 2005/06 and supplementary submissions to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Revenue 583 446 613 322 764 204 875 466 1 013 229 1 062 773 1 110 056

Expenditure 547 138 613 367 784 130

Surplus/(Deficit) 36 308 (45) (19926)


The following general observations may bedrawn from the Committee’s findings:

a) The present configuration and operations ofthe Auditor-General are suitable for the cur-rent South African environment. The effec-tiveness of the Auditor-General will beenhanced when government departmentsacquire a sufficient level of readiness for theconduct of performance audits. This, how-ever, may prove a challenge in terms ofhuman resource capacity, particularly giventhe fact that the Auditor-General has alreadyidentified shortage of skills as a constrainingfactor. Furthermore, the parliamentarymechanisms to process the outcomes ofperformance audits would need to bestrengthened.

b) The Committee feels that the Auditor-General expresses a good understanding ofhis mandate and applies it effectively andefficiently. However, the Committee believesthat the Auditor-General is incorrect in rely-ing on section 5(1)(a) of the Public Audit Actto provide the necessary legislative man-date to perform international work. TheCommittee understands the necessity forthe performance of external work, especial-ly for the purposes of attracting and retain-ing staff, provided that the performance ofsuch work does not detract from theAuditor-General’s primary obligations. Theabsence of a legislative mandate is unsatis-factory and should be corrected.

c) A disregard by government departments andother public institutions of recommendationsmade by the Auditor-General in audit reportsis a cause for concern. Instances of persist-ent disregard can however be taken up by

the National Assembly with the affectedexecutive authority. In that regard theNational Assembly acts in partnership withthe Auditor-General and should assist toensure the effectiveness of the Office.

d) The Committee had an oral presentationfrom the Chairperson of the StandingCommittee on the Auditor-General. Regret-tably this was not possible in the case of theStanding Committee on Public Accounts,although the Committee received a writtensubmission from that Committee. Based onthese inputs, the Committee understandsthat the interactions between the Auditor-General and Parliament are generally satis-factory. The Auditor-General accounts toParliament through a dedicated, multi-partyStanding Committee on the Auditor General,while the Standing Committee on PublicAccounts deals with the Auditor-General’ssubstantive reports.

e) The structured nature of the interactionsbetween the Auditor-General and thesestanding committees permits effective over-sight of the Auditor-General on the one handand provides the vehicle for parliamentaryengagement with the Auditor-General’sreports and recommendations on the other.

f) The Auditor General has adequate institu-tional arrangements, including conflict reso-lution mechanisms and a code of conduct forstaff and disclosure of interests, to ensureefficiency and effectiveness.

g) At present, collaboration and co-ordinationof activities with the other Chapter 9 andassociated institutions needs attention.

h) There is insufficient public awareness of theAuditor-General’s work.


C H A P T E R 5

5. Recommendations

The Committee considers the functioning of theAuditor-General consistent with its terms of ref-erence concerning efficiency. In addition, theinternational recognition of the standardsestablished by the Auditor-General reflects wellon the Office and its personnel.

In order to strengthen the efficiency and effec-tiveness of the Office further, the Committeemakes the following recommendations:

a) The legal mandate for the international workperformed by the Auditor-General should beclarified by legislation.

b) The Auditor-General should continue todevelop its capacity to conduct performanceaudits of all national and provincial govern-ment departments and municipalities.

c) The Auditor-General and the StandingCommittee on Public Accounts should bring

persistent disregard for the Auditor-General’srecommendations by government depart-ments and other public institutions to thespecial attention of the National Assembly.

d) The Auditor-General should continue in itsefforts at increasing public awareness of theactivities of the Office.

e) There should be a formal agreement withthe other Chapter 9 institutions to deal withany possibility of duplication or overlap offunction. This is particularly necessary wherethere is referral of cases or complaints toanother body. Specifically, the Committeerecommends that the Auditor-General for-malises its relationship with the PublicProtector and establishes mechanisms totrack and monitor referred matters. In addi-tion, the Auditor-General should includedetails of the number of complaints investi-gated, outcomes and referrals in its annualreport.



C H A P T E R 5

CHAPTER 6

1. Background

A body was established in 1912 with the broadresponsibilities of a traditional centralised per-sonnel institution for the public service. Underapartheid, the public service became a tool ofthe regime, geared towards serving the mate-rial needs and political interests of a minority atthe expense of the vast majority of SouthAfricans.

Until 1994, no independent body existed tomonitor and evaluate the operations of thepublic service and to advise on policy.Consequently, when negotiating the adoptionof the new constitution and its principles, theestablishment of an independent and impartialPublic Service Commission was regarded ascrucial if the public service was to be trans-formed in order that it might attend to the con-cerns of the people as a whole and contributeto the evolution of a new society.

From the advent of democracy, the promotionof growth and development has been a priori-ty for South Africa. Higher levels of growthdeepen the country’s transformation and safe-guard the stability of the political transition,while development relates to an improvementin the well-being of people, as a result of arange of targeted social, political and econom-ic processes. South Africa’s approach to devel-opment is one that values growth, sustainabledevelopment, equity, democratisation and theprotection of basic human rights.

The public service is considered to be an impor-tant instrument in the achievement of suchgrowth and development objectives. This is sobecause the services that the public serviceoffers are frequently the only hope that peoplehave to better their lives. In order that growthand development might happen, it is impera-

tive that the public service is supported bysound monitoring and evaluation systems,which provide timely information on the effec-tiveness, or otherwise, of programmes.

Although the Public Service Commission isestablished in Chapter 10 of the Constitution,like the Chapter 9 institutions its purpose is toprotect and support democracy. As such, it ischarged with safeguarding the public interestthrough the effective monitoring and evalua-tion of government practices. More specifically,the Public Service Commission is vested withoversight responsibilities for the public service,and monitors, evaluates and investigates publicadministration practices. It is also charged withpromoting the values and principles governingpublic administration contained in section 195of the Constitution, including professionalethics, efficiency, representivity and impartiali-ty. A full list of these values and principles canbe found in Appendix 1.


The Public Service Commission is the only insti-tution established in terms of Chapter 10 of theConstitution.

The history of the establishment of the firstever democratic Public Service Commission isinteresting. The 1993 Constitution made provi-sion for an independent and impartial PublicService Commission, composed of betweenthree and five commissioners. The 1993Constitution mandated the Commission tomake recommendations, give directions, andconduct enquiries regarding the organisation,administration, conditions of service, personneladministration, efficiency, effectiveness andcomportment of the public service. The

81THE PUBLIC SERVICE COMMISSION

CHAPTER 6

THE PUBLIC SERVICE COMMISSION

C H A P T E R 6

Commission was also assigned a capacity-building and human resource developmentfunction through its responsibility for the SouthAfrican Management and DevelopmentInstitute (SAMDI). Provincial commissions in allnine provinces performed similar functions tothat of the national Public Service Commission.

However, concern had arisen around the poten-tial for conflict of interest regarding theCommission’s role and function in terms of the1993 Constitution: The Commission was vestedwith executive and decision-making powersand, consequently, played a key role in thefunctioning of the public service.

Therefore, a new model for the Public ServiceCommission was devised, which confines itsrole primarily to monitoring and advising onmerit and equity, promoting the values andprinciples of sound public administration in thepublic service, including a high standard of pro-fessional ethics, and promoting efficiency. Interms of its constitutional and legal framework,this restructured Commission is a singleCommission (the provincial commissions wereabolished), which is much larger than the onethat existed under the 1993 Constitution.Members of the reconstituted Commissionwere appointed in January 1999, but delaysprevented the Commission from beginning itsoperations until July 1999.

Although the Commission is not a Chapter 9institution, section 196 of the 1996 Constitutionaffirms the Commission’s independence andrequires that it be impartial, performing itsfunctions without fear, favour or prejudice inthe interest of the maintenance of effectiveand efficient public administration and a highstandard of professional ethics in the publicservice.

Other organs of state must assist and protectthe Commission to ensure its independence,impartiality, dignity and effectiveness and noorgan of state or person may interfere with theCommission’s functioning.

The Commission is accountable to the NationalAssembly and must report to it at least once ayear. The Constitution also states that in respectof its activities in a province, the Commissionmust report to the relevant provincial legisla-ture. (It is noteworthy that these provisions aresimilar to those relating to the Chapter 9 insti-tutions).

As already mentioned, the Commission’s man-date is to maintain effective and efficient pub-lic administration and a high standard of profes-sional ethics in the public service. Section196(4) of the Constitution sets out theCommission’s powers and functions, which areto -

a) Promote the values and principles set out insection 195 throughout the public service;

b) Investigate, monitor and evaluate the organ-isation, administration and personnel prac-tices of the public service;

c) Propose measures to ensure effective andefficient performance within the public serv-ice;

d) Give directions aimed at ensuring that per-sonnel procedures relating to recruitment,transfers, promotions and dismissals complywith the values and principles set out in sec-tion 195;

e) Report in respect of its activities and theperformance of its functions, including anyfinding it may make and directives and


advice it may give, and to provide an evalu-ation of the extent to which the values andprinciples set out in section 195 are beingcomplied with; and

f) Either on its own accord or on receipt of acomplaint –

i. Investigate and evaluate the applicationof personnel and administration prac-tices;

ii. Investigate grievances of employees inthe public service and recommend appro-priate remedies;

iii. Monitor and investigate adherence toapplicable procedures in the public serv-ice; and

iv. Advise national and provincial organs ofstate regarding personnel practices in thepublic service, including those relating tothe recruitment, appointment, transfer,discharge and other aspects of thecareers of employees in the public serv-ice.

As indicated, section 195 is set out in full inappendix 1 this report. Broadly, however, thevalues and principles provided for in section195 include:

a) A high standard of professional ethics;

b) The efficient and effective use of resources;

c) The need for a development-orientated pub-lic administration;

d) Impartiality, fairness, equity and the absenceof bias in providing services;

e) Responsiveness to the needs of the peopleand the importance of encouraging partici-pation in policy-making;

f) Transparency;

g) The maximisation of human potential;

h) Representivity; and

i) Employment and personnel practices thatare based on ability, objectivity, fairness andthe need to redress the imbalances of thepast.

In addition, the Public Service Commission Act46 of 1997 empowers the Commission to per-form inspections, conduct inquiries and makerules in relation to the activities of the publicservice. In particular, the Commission may -

21

a) Inspect departments and other organisation-al components in the public service. TheCommission is provided with access to thenecessary official documents and informa-tion for it to perform its functions;

b) Conduct an inquiry into any matter that it isauthorised to do by the Constitution. For thepurpose of the inquiry, the Commission isempowered to summons any person whomay be able to provide information of mate-rial importance to the inquiry; and

c) Make rules as to the investigation, monitor-ing and evaluation of those matters towhich section 196(4) of the Constitutionrelates; as to the powers and duties ofCommissioners, including delegated powersand duties; and as to the manner in whichmeetings of the Commission will be con-vened.


C H A P T E R 6

21 Sections 9, 10 and 11, Public Service Commission Act 46 of 1997

3. Findings

The Committee met with the Public ServiceCommission on 26 January 2007. The discus-sions at the meeting were informed by thewritten submission received from theCommission in reply to the questionnaire circu-lated by the Committee beforehand. In addi-tion, at the request of the Committee, theCommission supplied it with supplementaryinformation. From these the followingemerged:


a) Since 1993, the Commission has performedits functions more than adequately. It hasseen its duties as an important contributionnot only to the public service but also to thedevelopment of the country.

b) Without wishing to detract from the excel-lent work performed by the Commissionover the years, the Committee feels thatincreasingly the need is for a body that has,as its sole focus, broader strategic issuesrelating to the setting and monitoring of theregulatory framework, as well as longer-term issues of professional standards andcommitment. The Commission has nowreached a stage where the demands placedon it are such that it can no longer sustainservice delivery within its current approvedestablishment. However, the Committee isof the view that simply increasing theCommission’s staff establishment is not nec-essarily the solution, as it does not addressthe underlying problems, which relate to thebreadth of the Commission’s mandate andthe size of the public administration. TheCommittee also recognises that the pro-posed establishment of a single public serv-ice with a greater role for departments and

a more active role for the Minister for thePublic Service and Administration introducesnew dynamics.

c) In its deliberations, the Committee notedthe recommendations of the PresidentialReview Commission, also known as theMaphai Commission.

22

The MaphaiCommission found that there was a need fora small body, ’radically and appropriatelystructured so that it is capable of carryingout [its] functions more efficiently, effective-ly and cost effectively’.

23

d) A major recommendation of the MaphaiCommission was that a less elaborate andprofessionally managed body be appointed.Although the body would remain independ-ent, reporting to the President as well as toParliament, the Maphai Commission recom-mended that such a central public servicemonitoring and inspection unit be located inthe Office of the President, led by three sen-ior, experienced commissioners (rather thanthe fourteen commissioners provided for inthe 1996 Constitution). The unit, which itproposed be called the Office of the PublicService Commission, would be responsiblefor monitoring, inspecting, reviewing,assessing and advising the President aboutthe implications of policy decisions andactions, and would recommend changesbased on its findings and conclusions. Theproposed Office should have a small butexpert staff, as well as the power to contractout some of its monitoring and inspectionfunctions to accredited service providers.The Maphai Commission made similar rec-ommendations with regard to the provincialcommissions.

e) The Committee studied the recommenda-tions of the Maphai Commission but feels


22 Presidential Review Commission. Developing a Culture of Good Governance, 27 February 1998.23 Presidential Review Commission on the Reform and Transformation of the Public Service in South Africa. Developing a Culture of Good

Governance, presented on 27 February 1998.

that they are not appropriate at this time.The proposed single public service will bringabout root-and-branch change in the publicservice. In all likelihood this will create enor-mous tensions at a time when service deliv-ery needs to be developed further, and theinfusion of the principles of batho pelerequires a concerted effort.

f) Regarding the size of the Commission, theCommittee is of the view that the presentcomposition of fourteen Commissioners istoo large, creating an unwieldy and cumber-some structure that does not allow forspeedy decision-making, creates logisticaldifficulties in arranging meetings and is notcost effective.

g) The Committee learnt that the Commissionhad conducted an institutional assessmentin 2002, which concluded that the presentstructure is a large one that has led to theCommission experiencing the difficultiesdescribed above. The assessment proposedtwo options: the first that the Commissionbe streamlined to consist of three full-timeand eleven part-time commissioners; andthe second that the Commission be reducedin size from fourteen to three full-time com-missioners. The second option would requirethat the Constitution be amended,

h) The Committee notes, however, that thecontext has changed since 2002. There hasbeen increasing demand for acceleratedquality service from the public administra-tion. This requires a responsive and readilyaccessible Public Service Commission.Therefore, any considerations around thesize of the Commission must take intoaccount the current context of the publicservice, the demands placed on a develop-mental state, its broad mandate and the fact

that its work encompasses the public serviceat both national and provincial levels. TheCommittee believes that between five andseven commissioners will meet the newneeds of the institution.

i) The Committee understands that, at present,of the fourteen Commissioners, nine areallocated to the provinces. This is a nationalCommission and, as such, “deployment”might affect the role of these “provincial”Commissioners. The Committee believesthat, in fact, the provincial offices should bethe conduits of information to the nationaloffice.

3.2. INDEPENDENCE

a) The Constitution and the Public ServiceCommission Act provide the legal basis forthe Commission to perform its functionsindependently, without fear, favour or preju-dice. However, the Commission is of theview that its independence is not simply amatter that can be regulated in law. TheCommission is mindful that it operates in thecontext of a developmental state wherethere is a major focus on the transformationof society and also of the public serviceitself. The Commission cannot afford to holditself aloof when exercising its independ-ence. The Commission submitted that for it‘independence is about the direct or indirectinterference with the programme and deci-sions of the institution and not about issuesof location and participation in governmentactivities’.

b) The practical implications of this approachare demonstrated where the Executive hasrequested that the Commission intervene innational and provincial departments to con-duct investigations and to provide advice.


C H A P T E R 6

For example, the Commission was requestedto intervene in the Eastern Cape andKwaZulu-Natal provincial administrations.The intervention was designed to tackleservice delivery challenges, specifically inthe areas of health, education, roads, publicworks and social development and toimprove turn-around times. The Commissionwas also involved in an intervention in theDepartment of Correctional Services in 2001.In this intervention, a senior official of theCommission was deployed to form part ofthe management team of the Departmentof Correctional Services for a period of sixmonths. There have been other occasionsfor such interventions.

c) The nature of these interventions hasrequired that the Commission engage dailywith executive functions, and has shownthat the Commission has performed regula-tory and executive functions, rather thansimply advisory functions.

d) The Committee finds that the nature of theCommission’s work creates a tension thatmakes the exercise of independence verydifficult. The Commission must strike a bal-ance between the exercise of its independ-ence and the expectations of governmentdepartments that it provide them with sup-port, as well as direct calls for involvementin the executive functions of government.By its own admission, the needs of the pub-lic service are such that the Commissioncannot afford to hold itself aloof when it actsindependently and, on occasion, this hasresulted in it getting its hands dirty as isdemonstrated by the fact that it has exer-cised executive functions when it has inter-vened in government departments at therequest of the Executive.

e) An interesting development occurred whilethe Committee was deliberating. The PublicService Amendment Bill, 2006, proposes theassignment of investigative powers to theMinister that are similar to those conferredon the Commission by the Constitution, andwill vest the Minister with oversight respon-sibilities and powers. In terms of the pro-posed amendment, the Minister can makebinding decisions emanating from investiga-tions. The Committee notes that theCommission has problems with the pro-posed amendment. In this regard, theCommittee is concerned that the overlap offunctions might in effect make theCommission all but redundant.

f) The Committee notes that the Minister forthe Public Service and Administrationappoints the Director-General of theCommission. It appears to the Committeethat the explanation for such an approachwas rooted in the time when the predeces-sors of the Commission formed part of theAdministration. The Committee finds it sur-prising, however, that this arrangement hascontinued and it should be corrected.


a) The Commission’s work is informed by its con-stitutional imperatives. Given its broad man-date, which covers all areas of public admin-istration and a public service with in excess ofone million employees, the Commission hasstructured its work into six key performanceareas, namely monitoring and evaluation;service delivery and quality assurance; leader-ship and performance improvement; publicadministration investigations; professionalethics and strategic human resource reviews;and labour relations improvement.


b) The Committee notes that the Commission’smandate is confined to the public service.Although the principles enunciated in sec-tion 195 of the Constitution apply to alladministration in every sphere of govern-ment, organs of state, and public enterpris-es, at present the Commission’s mandaterefers only to the administrations in thenational and provincial spheres of govern-ment. In this regard, the proposed singlepublic service will increase the Commission’sworkload.

c) The Commission has produced very valuabledocuments and carried out important initia-tives. Apart from its Annual Report on theState of the Public Service, its outputsinclude conducting citizen-satisfaction sur-veys in various government sectors; devel-oping and piloting citizen forums (as well asdeveloping a related toolkit); the drawing upand implementation of the framework forthe evaluation of heads of departments;developing rules for the lodging of com-plaints relating to maladministration, corrup-tion, standards of service provided, dishon-esty or improper dealings with regards tomoney and the behaviour, competency orattitude of staff; managing the national anti-corruption hotline, as well as developing acode of conduct for public servants; devel-oping and managing the financial disclosureframework for managers; and developingrules for the management of grievances.

d) The Committee commends the Commissionon developing various tracking mechanismsto see whether departments implement itsrecommendations. Nevertheless, theCommittee is dismayed that the Executivedoes not enforce many of the Commission’s

recommendations, and that they are not dis-cussed in Parliament.

e) The net result is that the improvements inpublic administration recommended by theCommission may not be implemented. TheCommission stated that there is a need forpowers of enforcement similar to those itenjoyed under the 1993 Constitution.However, the Committee finds that theCommission has in fact considerable powers(including the power to summons and to calldepartments to account), but that it doesnot use its powers in this regard strategical-ly. For example, the Committee learnt thatthe Commission had, in fact, used its powersto summons Directors-General but they didnot publicise such summons, thereby fore-going the persuasive power that knowledgeof such a precedent can bring in ensuringco-operation from departments.

f) The Commission provided details of thenumber of complaints or cases that it dealswith, as well as the number of referralswhere it lacks the necessary jurisdiction toconsider a matter itself.

g) In terms of section 196(4)(f)(ii) of the 1996Constitution, the Commission is empoweredto investigate grievances of public servants.Table 1 below sets out the number of griev-ances lodged by public servants in terms ofsection 35 of the Public Service Act, 1994,dealt with by the Commission in the pastfive financial years:


C H A P T E R 6

In the past financial year (2006/07), the natureof the grievances commonly related to salaryincreases or adjustments, performance assess-ments, unfair treatment, filling of posts, theundermining of authority, the refusal toapprove an application and disciplinary matters.

Between 1 September 2004 and 31 December2006, 4 182 corruption and service deliverycases were received via the National Anti-Corruption Hotline (which is managed by theCommission). Of these, 2 296 cases were relat-ed to corruption and corruption-related acts.These cases were referred to the relevantdepartments for investigation. In addition, inthe same period the Hotline has received morethan 20 000 abusive calls or calls that were notrelated to substantive allegations. Table 2,below, sets out the relevant statistics.

Table 2: National Anti-Corruption Hotline -cases reported from 1 September 2004 to 31December 2006

3.4. APPOINTMENTS

a) At present, the Public Service Commissionconsists of fourteen Commissioners. TheNational Assembly approves five of theCommissioners, while the Premiers of theprovinces each nominates one Commissioner.In both these cases, the President appointsthe Commissioners. The President is alsoresponsible for designating one Commissioneras Chairperson and another as DeputyChairperson.

b) The process for nomination is as follows.Whenever the President is required toappoint a Commissioner who must beapproved by the National Assembly, thePresident must address a request in writingto the Speaker of the National Assemblythat the National Assembly approves a fitand proper person for appointment. ACommissioner so appointed must be recom-mended by a committee of the NationalAssembly, and approved by the Assembly bymeans of a majority resolution.


Financial year Number of grievances Number of referrals

2001/2002 93 132

2002/2003 29 34

2003/2004 29 29

2004/2005 37 220

2005/2006 42 364

2006/2007 (up until 31 December 2006) 156 262

Corruption and corruption related cases 2 296

Service delivery complaints 1 105

Information related cases 108

Frivolous cases 507

Outside the Commission’s jurisdiction 166

Total 4 182

Table 1: Number of grievances lodged by public servants, and number of referrals

c) A Commissioner nominated by the Premierof a province must be recommended by acommittee of the provincial legislature andapproved by that legislature by way of amajority resolution.

d) The Committee has learnt with dismay thatthe terms of office of all Commissioners willexpire in 2008. In this regard, theCommittee believes that there is urgentneed to amend the relevant legislation toensure that appointments are staggered.The issue of the staggering of appointmentsof commissioners is also discussed morefully in Chapter 2 of this report.


a) The Committee finds that public awarenessof the Commission and its work is poor. TheCommittee notes that the Commission hasdeliberately adopted a constrained approachto marketing itself as it does not have thecapacity to cope with the influx of com-plaints and queries that increased aware-ness and publicity brings. However, theCommission conceded that it should domore.

b) The Committee leant that the Commissiondoes provide a box at all its offices wherethe public can lodge complaints.Complainants are informed of the outcomeof their complaint.

3.6. RELATIONSHIP WITH PARLIAMENTAND THE PROVINCIAL LEGISLATURES

a) The Commission is accountable to theNational Assembly and must report to it onan annual basis. The Commission interactsprimarily with the Portfolio Committee onPublic Service and Administration, the SelectCommittee on Local Government and

Administration and, occasionally, with theStanding Committee on Public Accounts.Parliament (both the National Assembly andthe National Council of Provinces) is seen asa key stakeholder.

b) The Committee notes that the researchundertaken by the Commission is evidence-based, involving the gathering and collationof qualitative and quantitative data. The pro-vision of useful and relevant research onpublic administration strengthens the poten-tial political oversight role of bothParliament and the provincial legislatures.

c) Nevertheless, the Commission voiced itsfrustration with the exercise of parliamen-tary oversight. While the interactionbetween the Commission and parliamentarycommittees has been useful, theCommission is concerned that the informa-tion that it generates is not being utilised aseffectively as it could be. In the view of theCommission, a great deal turns on the inter-est of committees of Parliament.

d) It is also a concern that the Commission hasextremely limited interaction with theprovincial legislatures, although it submitsthe same reports to the provincial legisla-tures as it does to Parliament. In this regard,the Committee notes the Commission’sefforts to monitor the extent of its interac-tions with a view to improving the presentsituation. The Committee believes that theCommission should continue with its effortsby working closely with Premiers.


a) The Commission entered into a formalmemorandum of understanding with theoffice of the Auditor-General and the office


C H A P T E R 6

of the Public Protector in 2002 to enhanceco-operation, efficiency and effectivenessand to avoid the duplication of resources.

b) In terms of the understanding with thePublic Protector, the Public ServiceCommission is to investigate complaintsfrom public servants while the PublicProtector is to investigate complaints fromthe general public. These referrals arise fromcomplaints lodged with the Commission bymembers of the public in terms of the com-plaints rules. Complaints lodged with theNational Anti-Corruption Hotline are notreferred to the Public Protector as its casemanagement system requires that callersare given feedback as soon as possible. Thereferral system would not facilitate feedbackwith the requisite urgency.

c) The Commission provided the Committeewith the number of complaints that it hasreferred to the Public Protector. In thisregard, the Committee notes that althoughthe Public Protector acknowledges receipt ofall complaints that the Commission refers toit, the Commission does not receive feed-back on the outcome of investigations.

Table 3: Complaints lodged in terms of thecomplaints rules and referred to the PublicProtector

d) The Commission also has an informal rela-tionship with the Human Rights Commissionin terms of which they exchange informa-tion obtained through research conductedinto the implementation of the Promotion ofAccess to Information Act, 2000.

e) The Committee believes that there are othergrounds for forming relationships withChapter 9 and associated institutions. TheCommittee is surprised that the Commissiondoes not liase with, or maintain a relation-ship with, the Commission for GenderEquality as gender-related issues abound inthe public service.


a) The Commission has a close and interactiverelationship with the Executive that extendsfar beyond that provided for in terms of thelegislation. Thus, the Director-General of theOffice of the Public Service Commission isthe co-chair of the Governance andAdministration cluster of the Forum of SouthAfrican Directors-General.

b) The Committee is informed that theCommission, through the Minister for thePublic Service and Administration, can submitmemorandums to Cabinet to obtain approvalfor initiatives and to inform Cabinet of strate-gic issues emanating from its investigationsand monitoring and evaluation work. TheCommittee believes this to be improper.


Financial year Number of cases referred to the Public Protector

2004/2005 3

2005/2006 23

2006/2007 (up until 31 December 2006) 50

c) In addition, the Commission is on occasionrequested by the Executive to participate ininterventions, to conduct investigations andto provide advice. The research reports gen-erated by the Commission are circulated toall executing authorities. The Commissionalso provides inputs annually for thePresident’s State of the Nation Address, aswell as for the Budget Vote speech of theMinister.

d) Regarding the Commission’s interaction withthe provincial administrations, theCommittee is informed that the Commissionhas frequent interaction with heads ofdepartments regarding the Commission’srole and function and how it can add valueto the work of the provincial administra-tions. However, the capacity in theCommission’s provincial offices is inade-quate, with the result that it is unable to domonitoring and evaluation for each depart-ment annually, which calls into question theusefulness of such provincial offices.


a) Commissioners do disclose their financialinterests. The disclosure takes place throughthe Director-General in the Office of thePresident and includes outside remunerationand all other financial interests. However, incommon with the other constitutional bod-ies, Commissioners should disclose director-ships and similar interests in the annualreport. General recommendations pertainingto disclosure are made in Chapter 2 of thisreport.

b) The Commission has regional offices in allprovinces. These serve as a base forCommissioners in the provinces and are

administered by regional directors and astaff complement of five. The Committeeexpressed its concern regarding the effec-tiveness of the regional offices. In addition,as mentioned earlier, the Committee is con-cerned that the “deployment” ofCommissioners to regional or provincialoffices may affect their role in what is a sin-gle national Commission.

c) There is a clear allocation of roles and respon-sibilities to Commissioners individually and tocommittees of the Commission. TheCommittee was informed that under gover-nance rules determined by the Commission allstructures within the Commission have mech-anisms to deal with conflict. With regard toemployees, the Rules for Dealing withGrievances of Employees in the Public Service(2003) apply. In addition, in terms of thePerformance Management and DevelopmentSystem for the Senior Management Service,senior managers must enter into performanceagreements in which dispute resolutionmechanisms are stipulated.

d) Human resource capacity, and staff reten-tion, particularly at the level of middle man-agement, are matters for concern.


a) The Committee was informed that althoughthe Commission’s budget has grown, it is notcommensurate with the increased demandsof its mandate. For example, the NationalAnti-Corruption Hotline requires resourcesthat go far beyond those originally budget-ed for. An unintended result of the Hotline isthat it receives service delivery complaintsabout government departments, which haveto be processed. Other areas affected byinadequate funding include the conduct of


C H A P T E R 6

Citizens’ Forums, the Commission’s monitor-ing and evaluation function and strategichuman resource reviews, as well as itsprovincial offices.

b) The Commission’s budget is a discrete andseparate item in the annual appropriation.However, the conduit of information toTreasury is through the Ministry for thePublic Service and Administration. TheCommission stated that as it does not sit onthe Ministerial Committee on the Budget(MINCOMBUD), it is unable to influence it,nor can it ask the Minister to do so on itsbehalf. Furthermore, there is a perceptionthat the Commission falls under theDepartment of Public Service andAdministration, as the Minister presents theCommission’s budget to Parliament.

c) Table 4 below sets out the allocations andexpenditure since 2003/04, as well as theCommission’s allocation in terms of theMedium Term Expenditure Framework. TheCommittee is of the view that the NationalTreasury has taken into account the impor-tance of the Commission’s work. TheCommission’s allocation has increased fromR64 million in 2003/04 to R97 million in2006/07, and in terms of the Medium TermExpenditure Framework, the Commission’sallocation will continue to increase to R116million in 2009/10.

Table 4: Income and expenditure 2003/04 –2009/10

24


a) The present constitutional and legal mandateof the Commission is suited to the currentSouth African environment. Very importantchanges are being prepared in the publicservice, and it is a great pity that all the pres-ent members of the Commission will retirenext year. The proposed changes to the pub-lic service will have a very big impact on theefficiency of the new Commission.

b) The Commission is acutely aware that it oper-ates in the context of a developmental statein which a key focus is the transformation ofsociety and also of the public service itself.Accordingly, it has adopted a useful approachto the constitutional and statutory provisionsrelating to its independence in that it guardsagainst direct or indirect interference with theprogrammes and decisions of the institution,but it does not hold itself aloof from govern-ment activities. The Committee believes thatthis is a very sensitive area, which theCommission has handled well.

c) The Commission reveals a good understand-ing and application of its mandate, powersand functions. However, the Commission’scapacity to fulfil its mandate is severely test-ed, particularly in terms of its financial andhuman resource capacity. This is likely to bestrained further with the introduction of theproposed single public service with theaccompanying changes.

d) The present arrangements concerning theappointment of Commissioners are unsatis-


24 National Treasury (2007), Estimates of National Expenditure and the Commission’s submission to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10Budget Allocation 64 215 73 081 86 106 97 003 105 357 110 506 116 965Additional funding 2 000 3 500 7 000Expenditure 64 145 71 128 84 725Surplus/(Deficit) 2 070 5 463 8 381

factory, in particular those relating to theCommission’s size and the fact that there isno staggering of the appointment ofCommissioners. General recommendationsin this regard are made in Chapter 2 of thisreport, while specific recommendations aremade below.

e) The outcome of the Commission’s interac-tions with Parliament and the provincial leg-islatures is unsatisfactory. Recommendationsare made in this regard.

f) The Commission has adequate institutionalarrangements, including conflict resolutionmechanisms, a code of conduct for staff anddisclosure of interests, to ensure efficiencyand effectiveness. Nevertheless, generalrecommendations are made in this regard inChapter 2 of this report.

g) At present, collaboration and co-ordinationof activities with the Chapter 9 and associat-ed institutions is unsatisfactory. General rec-ommendations are made in this regard inChapter 2 of the report.

h) Public awareness of the Commission’s workis insufficient.

i) The Commission contends that the increasedallocation for the National Anti-CorruptionHotline has not adequately taken into accountthe increased workload that has resultedfrom service delivery complaints. TheCommittee believes that the present budget-ary arrangements are satisfactory. However,general recommendations relating to budget-ary arrangements for the institutions underreview are made in Chapter 2 of this report.

5. Recommendations

To enhance the Commission’s efficiency andeffectiveness, the Committee recommends that -

a) The process of selecting and appointing newCommissioners must take into account theneed for staggering, so as to avoid institu-tional memory loss. This is a particular con-cern given that the present Commissioners’terms of office come to an end next year.General recommendations are made in thisregard in Chapter 2 of this report.

b) The number of Commissioners appointedshould be reduced from fourteen to betweenfive and seven Commissioners. With theincreased role of the Minister and a propersystem being in place, the appointment ofbetween five and seven Commissioners willmeet the new needs of the Office.

c) In the meantime, until changes in the com-position are made, Commissioners located inthe provinces must play a greater advocacyrole by actively promoting the Commission’swork in the provincial legislatures. Further-more, the Commission should seek toincrease the relevance of its reports to theprovincial legislatures by providing informa-tion that is pertinent to the provinces.

d) Until the Committee’s principle recommen-dation concerning Parliament’s role in thebudget process is effected, there must be aclear statement of understanding when theCommission’s budget is presented toParliament, to which the Minister for thePublic Service and Administration con-tributes, that the Commission and its budgetdo not form part of the Department of PublicService and Administration.

e) The Commission should include informationin its annual report that reflects the outcomeof the recommendations it has made toParliament and the provincial legislatures.

f) The Commission should actively promotepublic awareness of its role and activities.


C H A P T E R 6

CHAPTER 7

1. Background

Democratic governments worldwide areentrusted with the responsibility of protectingand enhancing the rights of their citizens.However, governments are not infallible. Inorder to promote and ensure effective govern-ment, different forms of supervision and over-sight of state functionaries have been identified.

This is to ensure that citizens enjoy somedegree of protection if their rights arebreached, in particular in the event of adminis-trative impropriety. However, litigation tends tobe formal, expensive and dilatory to the pointwhere the ordinary person is deterred fromusing it to assert or enforce his or her rights.Therefore, most democracies have an institu-tion that is similar to that of the PublicProtector, although they go by a variety ofnames, including that of ombudsman, mediatorand commissioner. In broad terms, these insti-tutions will assist in maintaining and establish-ing efficient and proper public administration,as they are able to insist that the administrationacts within democratic principles.

Therefore an institution such as the PublicProtector is an important addition to thearmory of mechanisms that are employed tocreate the substance of fair and stable constitu-tional government. In furtherance of this ideal,appointments to this office require an experi-enced public officer to monitor the implemen-tation of policy and the provision of services toensure administrative justice and fair treatmentof all the people.

The idea of the office of the Ombudsman orig-inated in Sweden, spreading at first to theScandinavian countries and then later to variousCommonwealth and other European countries.In particular, the transition to democracy and

growth in democratic structures of governancein the past few decades have led to the estab-lishment of many more such offices in recenttimes.

During the negotiating process in South Africa,it was unanimously agreed that the establish-ment of an independent and impartial ombuds-man with substantially expanded powers toinvestigate and review the regularity and legal-ity of administrative actions was vital for theprotection and enforcement of the rights thatwere to be contained in the transitionalConstitution.

However, the term Public Protector was pre-ferred because of the gender connotations con-cerning the word ‘ombudsman’. Therefore, the1993 Constitution provided for the establish-ment of the Public Protector, and Chapter 9 ofthe Constitution of 1996 confirms the continuedexistence of this office as a State InstitutionSupporting Constitutional Democracy.

The office of the Public Protector came intobeing on 1 October 1995. As a historical aside,prior to the advent of democracy, the apartheidregime established the office of the Advocate-General, which was not established in the con-text of a democratic state and fell far short ofthe prerequisites for an ombudsman.

In contrast, the office of the Public Protectorwas established for the purpose of ensuringgovernment accountability and providing reme-dies for maladministration and abuse of author-ity. It is up to the Public Protector to use his orher powers to investigate, report on and sug-gest remedial action for a wide range of impro-prieties in the public administration, includingmaladministration, the abuse or unjustifiableuse of power, corruption, unlawful enrichment,and acts that unlawfully prejudice a citizen.

95THE PUBLIC PROTECTOR

CHAPTER 7

THE PUBLIC PROTECTOR

C H A P T E R 7


Section 112 of the 1993 Constitution created anindependent and impartial Office of the PublicProtector. The Constitution of 1996 provides forthe continued existence of an independent andimpartial Public Protector as a state institutionsupporting constitutional democracy. ThePublic Protector is mandated to investigate anyconduct in state affairs or in the public admin-istration in any sphere of government that isalleged or suspected to be improper or to resultin any impropriety or prejudice, to report on thealleged or suspected conduct, and to proposeappropriate remedial action.

The operational requirements of the office areprovided for under the Public Protector Act 23of 1994, as amended.

2.1. INDEPENDENCE AND IMPARTIALITY

The Constitution contains the following provi-sions that aim to protect the independence andimpartiality of the office of the Public Protector:

a) Section 181 lists the Public Protector as astate institution strengthening constitutionaldemocracy, declaring it independent, andsubject only to the Constitution and the law.It also requires the office to be impartial,and to exercise its powers and perform itsfunctions without fear, favour or prejudice.

b) In terms of section 181(5), the PublicProtector is accountable to the NationalAssembly, and must report to the Assemblyat least once a year on the activities of theoffice and the performance of its functions.In addition, section 8 of the Public ProtectorAct, 1994, was amended in 1998 by provid-ing that the Public Protector may submitspecial reports when necessary.

c) Section 181(3) of the Constitution directsother organs of state, through legislativeand other measures, to assist and protectthe office of the Public Protector to ensureits independence, impartiality, dignity andeffectiveness.

d) Section 181(4) prohibits any person or organof state from interfering with the function-ing of the Public Protector.

The governing legislation strengthens these con-stitutional principles. Furthermore, section 5(3)of the Public Protector Act, as amended, indem-nifies the Public Protector and any member ofhis or her office against liability in respect ofanything reflected in any report, finding, point ofview or recommendation made or expressed ingood faith and submitted to Parliament in termsof the Act or the Constitution.


Section 182(1) of the Constitution assigns tothe Public Protector the power to investigateany conduct in state affairs, or in the publicadministration in any sphere of government,that is alleged or suspected to be improper orto result in any impropriety or prejudice, toreport on that conduct and to take appropriateremedial action.

Furthermore, section 6(4) of the Public ProtectorAct provides the Public Protector with addition-al powers to investigate, whether on own initia-tive or on receipt of a complaint, any alleged -

a) Maladministration in connection with theaffairs of government and any allegedabuse of power or other improper conductby a person performing a public function;

b) Improper or dishonest act or omission oroffences; and


c) Improper or unlawful enrichment or receiptof any advantage or promise of such enrich-ment or advantage by a person as a resultof an act or omission in the public adminis-tration or in connection with the affairs ofgovernment at any level or of a person per-forming a public function.

Section 6(4) and (5) deal with the power toinvestigate either an alleged act or any attemptto commit such an act.

The Public Protector Act gives the PublicProtector special powers to assist him or her inconducting an investigation. The PublicProtector may direct any person to appearbefore him or her to give evidence or producea document in his or her possession or underhis or her control. The Public Protector may alsorequest the assistance of any person at anylevel of government or anyone who performs apublic function, to assist the Public Protector inperforming his or her duties with regard to aspecial investigation.

Section 182(3) of the Constitution specificallyprovides that the Public Protector may notinvestigate court decisions.

It is very important though rather unusual thatthe Constitution provides that the PublicProtector must be accessible to all persons andcommunities, and that the Public Protectorshould ensure transparency and openness,especially in reporting, unless exceptional cir-cumstances as determined by national legisla-tion require otherwise.

The Executive Members’ Ethics Act, 1998,enables the Public Protector to investigate anycomplaint received from the President, aMember of Parliament or Premier or member ofa provincial legislature of an alleged breach ofthe code of ethics governing the conduct of

Members of the Cabinet, Deputy Ministers andMembers of Executive Councils of the provinces.

3. Findings

The Public Protector responded in writing to theCommittee’s questionnaire. This documentformed the basis for the Committee’s discussionswith the Public Protector, which took place on 7February 2007. The Committee’s findings werealso informed by further submissions from thePublic Protector and from the Ministry of Justiceand Constitutional Development, as well as anumber of other submissions. From these, theCommittee finds as follows:


a) The Public Protector accepts that the princi-ples of co-operative government and inter-governmental relations as set out in section41(1) of the Constitution apply to his office.However, the Committee has obtained legalopinion that refutes this. In the case of theIndependent Electoral Commission vLangeberg Municipality,25 the ConstitutionalCourt had occasion to consider this matter.The Court held that while Chapter 9 institu-tions are organs of state, they do not formpart of government. Therefore, the Commit-tee reiterates that the principles of co-oper-ative government do not apply to the PublicProtector, and that none of the Chapter 9institutions are bound by the principles ofco-operative government.

b) The Public Protector Act provides that theremuneration and other terms and condi-tions of service of the Public Protector andthe Deputy Public Protector are determinedby the National Assembly on the advice ofthe parliamentary committee to which thematter is referred.


C H A P T E R 7

25 2001 (9) BCLR 883 (CC)

c) The Committee notes that, while thisstrengthens the independence of the office,in practice the determination of remunera-tion has created difficulties, particularly withregard to periodic adjustments or increases.

d) In his submission to the ad hoc Committeeon Operational Problems in the Office of thePublic Protector set up by the NationalAssembly originally in 2006, the PublicProtector objected to not being consulted asa public office-bearer prior to the publicationof the report of the IndependentCommission for the Remuneration of PublicOffice-Bearers. This Commission makes rec-ommendations regarding the salaries ofpublic office-bearers, including judges. Interms of the Constitution, the PublicProtector’s salary is benchmarked againstthat of a Judge of the Supreme Court ofAppeal. As such, the recommendations ofthe Commission, once endorsed by thePresident, will impact on the PublicProtector.

e) In the same submission, the Public Protectorcomplained that the present budgetaryarrangements undermine his independence.In particular, the budgetary arrangementsallow for a situation where, in fact, NationalTreasury and the Department of Justice andConstitutional Development decide his pay.The Deputy Public Protector’s salary and con-ditions of service are dependent on the pub-lic service scales.

f) The Committee regrets that section 219(5)of the Constitution, which requires theenactment of framework legislation todetermine the remuneration for office-bear-ers of the various constitutional institutions(including the Public Protector), has not yetbeen enacted. This matter is discussed in

greater detail and general recommendationsare made in Chapter 2 of this report.

3.2 INTERPRETATION AND UNDERSTANDING OF MANDATE

a) As previously mentioned, the PublicProtector is mandated to investigate anyconduct in state affairs, or in public adminis-tration in any sphere of government, that isalleged or suspected to be improper or toresult in any impropriety or prejudice, toreport on that conduct and to take appropri-ate remedial action.

b) A number of submissions made to theCommittee brought to its attention criticismof the Public Protector for narrowly inter-preting his mandate. Of course this wouldrelate to his mandate in investigating anysphere of government. It appears that thecriticism is linked to cases involving high-level people in public life. While there is thisview, the Committee is in no position toestablish the validity of these perceptions.This is a matter for the office of the PublicProtector to respond to. The Committeedoes, however, in that regard draw attentionto the constitutional provision relating to thePublic Protector’s dignity.

c) A very important element in the PublicProtector’s work is the response of govern-ment departments following requests forinformation. Such information must be sup-plied in order for the Public Protector toinvestigate complaints. The Public Protectorhas extensive powers to demand public infor-mation but has only had to resort to subpoe-nas on two occasions to obtain the necessaryinformation. Nevertheless, the Committeenotes that investigations are often delayed bythe failure of departments or public entitiesto co-operate in a timely fashion.


d) The Committee spent considerable timeenquiring about the time taken to settlecases. Table 1 in subparagraph (f) belowprovides details of the number of new casesreceived, cases finalised and cases carriedforward since 1999.

The Committee also asked about the level ofacceptance of the Public Protector’s recom-mendations. The Public Protector informed itthat acceptance of recommendations is veryhigh.

e) The Committee notes that the more com-mon types of cases investigated include:i. Insufficient or no reasons given for a

decision;

ii. The interpretation of criteria, standards,guidelines, regulations, laws, informationor evidence was wrong;

iii. Processes, policies or guidelines were notfollowed or were not applied in a consis-tent manner;

iv. Adverse impact of a decision or policy onan individual or group;

v. Failure to provide sufficient or propernotice;

vi. Due process denied;

vii. A public service was not provided to all individuals equitably; and

viii. Denial of access to information.

f) The Public Protector deals with an enormousworkload. The Public Protector informed theCommittee that, despite a slight decrease innew cases, the workload has actuallyincreased with the focus on systemic prob-lems.

The Committee is concerned that the back-log in cases has increased from 1999, butunderstands that there is a strategy toaddress the backlog.

Furthermore, the Committee notes thatthere appears to be a problem with thePublic Protector’s data system, which as aresult is not operational, making it difficultor cumbersome for the office to provide thenecessary statistics, as these all need to becompiled manually.

Table 1 below provides statistics of casescarried forward, new cases received andcases finalised.

Table 1: Summary of cases carried forward,new cases received and cases finalised


C H A P T E R 7

Cases carried forward New Cases Cases finalised Cases carried over from previous year to following year

1999 10 884 9 085 6 993 12 976

2000/01 13 326 10 442 9 649 14 120

2001/02 13 427 12 174 12 202 13 399

2002/03 13 399 15 674 21 705 7 368

2003/04 7 520 17 295 15 946 8 869

2004/05 9 292 22 350 7 539 14 103

2005/06 14 103 17 415 17 619 13 899

(Note that there appear to be discrepancies between cases carried forward from a

previous year and cases carried over to a following year)

g) The Committee notes that the office of thePublic Protector has conducted very few pro-active or own-initiative investigations. TheCommittee was able to establish that theoffice had in fact initiated only 10 such casesin 2006/07, 7 cases were finalised and atotal of 18 cases have been carried forward tothe present financial year. Again, the steadilyincreasing number of cases carried forwardeach year is a cause for concern to theCommittee. In cases where a matter is one ofgreat public importance, the public wouldexpect the Public Protector to act. Table 2below provides the relevant statistics.

Table 2: Own initiative investigations:Cases initiated and finalised 2002/03 –2006/07

3.3. APPOINTMENTS

a) The Public Protector and the Deputy PublicProtector are appointed by the President onthe recommendation of the NationalAssembly for a non-renewable period ofseven years. The resolution recommendingthe appointment of the Public Protectormust enjoy the support of at least 60% ofthe members of the National Assembly,while that of the Deputy Public Protectorrequires a simple majority.

b) As far as qualifications are concerned, thecriteria laid down for appointment areextensive and broad and do not comparewith those for other Chapter 9 institutions.The criteria have, in any event not reallybeen applied. In practice, appointment turnslargely on having legal qualifications, orexperience in the administration of justice.The Committee notes for example, that aMember of Parliament with ten years expe-rience is also eligible for appointment.

c) The qualifications require revisiting. Generalrecommendations in this regard are made inChapter 2 of this report.


Cases Cases Cases carried initiated finalised forward

2002/03 6 1 6 (1 case had been brought forward from 2001/02)

2003/04 2 5 3

2004/05 16 3 16

2005/06 7 8 15

2006/07 10 7 18

Total 41 24 18


a) The Constitution requires that the PublicProtector be accessible to all persons andcommunities. Similarly, the Public ProtectorAct requires that the Public Protector mustmake his or her office accessible to the public.

b) The Committee learnt that the PublicProtector has a national head office, nineprovincial offices, and six regional offices,and is in the process of creating two moreregional offices in the Northern and EasternCape. In addition, there are 73 visiting pointslocated mostly in rural areas. The PublicProtector has an outreach programmeinvolving each of its regional offices. TheCommittee notes from submissions made toit that in general there appears to be a high-er degree of satisfaction with the headoffice as opposed to regional and/or provin-cial offices. The issue of provincial andregional offices is explored in greater detailin Chapter 2 of this report.

c) The Committee finds that the office of thePublic Protector should actively exploreways and means of interacting with commu-nity-based organisations in order to gainaccess to the most disadvantaged and poor,especially in rural areas. In addition, theCommittee makes recommendations else-where regarding the innovative use of exist-ing government initiatives to increase publicawareness.

d) Submissions were made to the Committeethat the public is not aware of the PublicProtector, despite its outreach activities andthe establishment of provincial and regionaloffices. These submissions are fortified bythe findings in a Cabinet document that overhalf of respondents had never heard of the

Public Protector, the South African HumanRights Commission and the Commission onGender Equality and therefore did notunderstand their functions.

26

This is con-firmed by a survey undertaken by theCommittee, which indicated that only 42%of the respondents had heard of the PublicProtector.

e) The Committee reiterates that where thefunctions of the institutions under reviewoverlap, there should be concerted jointefforts. These are not bodies that areephemeral or private institutions. They areconstitutional bodies and should be widelyaccessible, especially in the area of humanrights.

f) As mentioned above, the Committee findsthat the institutional capacity of the office ofthe Public Protector to deal with complaintsin a timely fashion requires strengthening.The inability to finalise cases speedily maydissuade the public from utilising the PublicProtector as an alternative dispute resolutionmechanism, thereby undermining theoffice’s effectiveness. The Committeebelieves that delays in arriving at recom-mendations leads to dissatisfaction and dis-illusionment in the whole system. On thispoint, the Committee believes that backlogsshould be dealt with as a priority, and thatthe extent of the reduction in the backlogrests with the Public Protector,


a) The Committee’s terms of reference includethe issue of collaboration between the insti-tutions under review. The Committee haslearnt that -


C H A P T E R 7

26 Government of the Republic of South Africa, Macro-social Trends in South Africa. Discussion document produced by the Office of the Presidency. 2006.

i. To avoid the potential for duplication offunctions, the Public Protector has amemorandum of understanding with thePublic Service Commission concerningthe referral of complaints to each other.Neither the Public Protector nor thePublic Service Commission were able toinform the Committee of the number ofreferrals and the outcomes thereof.Recommendations regarding the referralof cases are made in Chapter 2 of thisreport.

ii. Where a matter involves the promotion,monitoring and assessment of humanrights and an abuse of those rights, theoffice of the Public Protector will refer itto the appropriate commission. Forexample, the practice of creating “gatedcommunities” by closing off public accessto neighbourhoods for the purposes ofcrime prevention was referred to theHuman Rights Commission.

b) The Committee notes the absence of system-atic collaboration between the variousChapter 9 and associated institutions. In evi-dence before the Committee reference wasmade to the fact that the respective strengthsand capacity of the institutions is not thesame, making collaboration even more com-plicated. For example, in the past the PublicProtector had more offices in the provincesthan the Commission for Gender Equality,which made it very difficult if not impossibleto refer cases from the Public Protector to theCommission for Gender Equality.

c) The Committee views this as a serious mat-ter. That there are disparities in capacity andresources should not result in a lack of liai-son. Mandatory meetings are necessary toestablish a culture of co-ordination. Joint

activities may have budget implications,requiring planning and a special budget forimplementation. The issue of co-ordinationand collaboration is discussed more fully inChapter 2 of this report.

d) The Committee concludes that the Chapter 9institutions have adopted a reactiveapproach to collaboration in terms of whichtheir working together occurs on an informalbasis. The Committee believes that a morepurposive strategy towards their workingtogether would be far more effective andefficient, especially in the area of the pro-tection of human rights in respect of whichthere is a very loose and informal interac-tion between them.

3.6. RELATIONSHIP WITH CIVIL SOCIETY

a) The Committee notes that a key ingredientin the success of forming such a relationshipis the public’s knowledge of their rights andhow to act on any violation of such rights.Promoting knowledge of human rights is ashared responsibility of both the office ofthe Public Protector and civil society. In thisregard, a sustained and structured relation-ship would be advantageous. TheCommittee notes, however, that in realitythe relationship with civil society is reflectedas weak, as well as being informal andintermittent.

b) The Committee notes that the enabling leg-islation does not require the Public Protectorto have contact or establish meaningful liai-son with civil society, which is in contrast tothe Commission for Gender Equality.

c) However, civil society organisations areoften the first port of call for distressed indi-viduals or groups in need of redress.


Furthermore, civil society organisations are avaluable network for access to communitiesand residents, particularly at the local levelor in far-flung rural communities and resi-dences.

d) A submission made to the Committeeemphasised the need to reach out to thepoor, marginalised and vulnerable. TheCommittee is of the view that the relation-ship with civil society is crucial to enhancingthe effectiveness of the office. In this regard,the Committee notes that the office of thePublic Protector has stated that ‘co-opera-tion with civil society organisations is ofhigh importance to the office of the PublicProtector as these organisations are oftenthe eyes and ears of the Public Protectorwhere individuals are unable to access thePublic Protector or did not know about thePublic Protector’.

e) The Committee believes that the relation-ship with civil society needs to be firmed upin the light of submissions made by civilsociety that have questioned the PublicProtector’s operations and effectiveness.

f) The Committee highlights the need forincreased attention to and allocation ofresources towards building healthy relationswith civil society. Such encounters are ameans of informing civil society of the workof the Public Protector, and of human rightsissues of the day.


a) At present the Public Protector is account-able to the National Assembly through thePortfolio Committee on Justice andConstitutional Development. In his submis-sion, the Public Protector advocated greater

interaction and better relations with thePortfolio Committee.

b) In addition, the Public Protector proposedthe need for a mechanism within Parliamentto facilitate a more systematic interactionbetween it and the Chapter 9 and relatedbodies.

c) The Committee agrees that there should bemore systematic engagement and co-ordi-nation of activities, and makes recommen-dations in this regard in Chapter 2 of thisreport.


a) The Public Protector has criticised the role ofthe Department of Justice and ConstitutionalDevelopment and the National Treasury inthe financial arrangements of the office,which impacts on its internal operations andalso on its staff appointments.

b) The Department of Justice and ConstitutionalDevelopment is unique in having a specialdirectorate with a large staff complement todeal with the Chapter 9 institutions. ThisDirectorate has wide terms of reference todeal with budgetary processes; promoteproposals emanating from the reports of theChapter 9 institutions; evaluate and investi-gate the Chapter 9 institutions founding leg-islation; and promote and promulgate legis-lation to enhance the institutions’ effective-ness.

c) The Committee makes recommendations inChapter 2 of this report concerning theappropriate financial arrangements for theinstitutions under review and in relation tostaffing.


C H A P T E R 7

d) In addition, the Committee highlights therecommendations of the ad hoc Committeeon Operational Problems in the Office of thePublic Protector concerning the need tomaintain the lines of authority and account-ability between the office of the PublicProtector and other organs of state. In thelight of the sentiments expressed by thePublic Protector as reflected in the previousparagraph, it is especially important thatclear lines of authority are observedbetween the Public Protector and theDepartment of Justice and ConstitutionalDevelopment so as to protect the independ-ence of the office of the Public Protector.


a) The Committee regrets the recent public dis-cord between the Public Protector and theDeputy Public Protector, highlighting thatsuch disputes tarnish the image of the officeand undermine its credibility. In this regard,the Committee notes the findings of the adhoc Committee on Operational Problems inthe Office of the Public Protector appointedby the National Assembly in 2006 at therequest of the Public Protector to investigatethe operational problems in that the ad hocCommittee found that the dispute had notonly been aggravated by inadequate inter-nal systems but also had negatively impact-ed on the operation of the office. ThisCommittee notes that the ad hoc Committeemade several general recommendations tobring about stability in the internal opera-tions, and in particular highlighted the needto fill senior posts.

b) The Committee is dissatisfied with the inter-nal governance arrangements. Too manysenior posts remained unfilled for too long a

time. A number of key vacancies, includingthat of the chief financial officer and ChiefExecutive Officer, have only recently beenfilled as a result of the recommendations ofthe ad hoc Committee. Whatever the diffi-culties in filling these posts, the Committeebelieves that these vacancies seriouslyimpinged on the operations of the Office.

c) The Committee notes the lack of represen-tivity in appointments within the office ofthe Public Protector, and within its provincialoffices, which must be corrected.

d) The Committee notes that the North WestProvince has a staff complement that ismore than double that of any of the otherprovincial offices. The reason for this is his-torical as the North West Province office wasan inherited structure from the formerBophuthatswana homeland, which had fiveombudsman offices.

e) The Committee accepts the explanation butbelieves that this has lasted too long. TheCommittee finds that the present situation isneither an efficient nor effective use ofresources.

f) It emerged in evidence that there is urgentneed for a case management system. Sucha system allows for the tracking of casesfrom the beginning to their conclusion,thereby enabling progress to be monitored.At present, the office simply does not haveaccess to the necessary data. The office haspaid for a system but it is not operational.Presently statistics are compiled manuallyand, as the Committee has noted earlier, theabsence of a case management system cre-ates difficulties in compiling statistics and inmonitoring the progress with cases.

g) With regard to policies on disclosure of out-


side interests, the Public Protector informedthe Committee that there were no policiesin any form in place until 2003. The PublicProtector is not permitted to perform otherremunerative work. Presently, all seniormanagers declare their interests informallyto the Public Protector, but a task team hasbeen established to attend to this.

h) As is the case with all the bodies itreviewed, the Committee finds the arrange-ments concerning the disclosure of interestsunsatisfactory. The issue is discussed morefully and recommendations are made inChapter 2 of this report.

i) The Public Protector Act provides that theNational Assembly must determine theremuneration and other terms and condi-tions of employment of the Public Protector.The Committee has dealt with this earlier inthe chapter. It is clear to the Committee thatthe absence of a legislative framework interms of section 219(5) of the Constitutionto determine the remuneration of office-bearers for the Chapter 9 and associatedconstitutional institutions is cause for enor-mous dissatisfaction and frustration.

j) The Public Protector Act makes provision forthe tabling in Parliament of a document set-ting out the remuneration, allowances andother conditions of employment in appoint-

ing new staff. The Committee notes that thelast occasion on which such a document wastabled was in 2002.


a) Table 3 below gives a financial summary forthe office of the Public Protector for the peri-od 2003/04 to 2009/10. With the exceptionof 2004/05, the Public Protector has under-spent each year in the period under review.This is of concern to the Committee, giventhe dissatisfaction that the Public Protectorexpressed concerning budgetary constraints.

b) It is noted that the budgetary allocations willhave more than doubled between 2003/04and 2009/10.

c) Nevertheless, the Committee finds that ithas insufficient information to draw anyconclusions with regard to cost effective-ness.

Table 3: Revenue and Expenditure – Office ofthe Public Protector

27

.


C H A P T E R 7

27 National Treasury (2007), Estimates of National Expenditure and the Public Protector’s submission to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Total revenue 44 628 50 063 59 258 67 784 78 722 86 475 95 099

Total expenditure 41 001 53 201 58 230

Surplus/(Deficit) 2 627 (3 138) 1 028


a) The present configuration and operations ofthe office of the Public Protector is suitablefor the current South African environment.

b) In light of the recommendations of the adhoc Committee on Operational Problems inthe Office of the Public Protector, it is neces-sary that internal mechanisms are set up todeal with breakdowns in relations.

c) The appointments and budget arrangementsare unsatisfactory. Recommendations toenhance consistency, coherence, accounta-bility and affordability are made in Chapter 2of this report.

d) The National Assembly’s oversight of theoffice of the Public Protector is unsatisfacto-ry. Recommendations are made in thisregard in Chapter 2 of this report.

e) The Public Protector’s institutional arrange-ments, particularly the arrangements con-cerning disclosure of interests, are inade-quate.

e) At present, the collaboration and co-ordina-tion of activities with the Chapter 9 andassociated institutions are effectively non-existent.

f) Public awareness of the role of the office ofthe Public Protector and its work is insuffi-cient.

5. Recommendations

The Committee recommends that -

a) The office of the Public Protector continuewithout substantive change to either its man-date or to its the powers and functions.

b) The Public Protector should be proactive inincreasing public awareness of the activitiesof the office. In this regard the Committeerefers to the recommendation of the ad hocCommittee on Operational Problems in theOffice of the Public Protector, namely thatthere is need for an effective communicationstrategy to allow the office to keep the pub-lic adequately informed of its work and ofprogress with cases, thus avoiding any mis-understanding.

c) The Public Protector should participate in theproposed formal collaborative structure to beformed between the Chapter 9 and associat-ed institutions to ensure co-ordinated activi-ties and the establishment of joint projects.

d) There should be a formal agreement with rel-evant institutions to prevent any possibility ofduplication or overlap of functions. This is par-ticularly necessary where there is referral ofcases or complaints to another body.Specifically, the Committee recommends thatthe Public Protector formalises its relationshipwith the Auditor-General, the Commission forGender Equality and the Human RightsCommission and establishes mechanisms totrack and monitor referred matters.

e) The Public Protector needs to develop a staffretention strategy to address staff turnover,particularly at a senior level.

f) Mechanisms should be developed to improve



C H A P T E R 7

the relationship and interaction between theNational Assembly and the Public Protector.The role of the proposed unit in the Office ofthe Speaker of the National Assembly dis-cussed in Chapter 2 of this report would behelpful.

g) The appointments procedures in respect of thePublic Protector and the Deputy PublicProtector should be reviewed. The Committeemakes general proposals in this regard inChapter 2 of this report.

h) The budget process and location of the PublicProtector’s budget allocation should be revisedin accordance with the recommendations ofthe Committee in Chapter 2 of this report.

i) The directorships, partnerships and consultan-cies of the Public Protector and the DeputyPublic Protector and senior officials must be

disclosed in the annual report of the office. Inaddition, the disclosures of pecuniary andother interests of the office-bearers and staffmembers must be kept available in a registerand an indication must be made in the annu-al report of where such information is avail-able. General recommendations in this regardare made in Chapter 2 of the report.

j) The appropriate lines of authority and account-ability between the office of the PublicProtector and other organs of state, more par-ticularly the Department of Justice andConstitutional Development, should beobserved so as to protect the independence ofthe office of the Public Protector.

k) Clear protocols for the delegation of powersand functions must be established so as toavoid the potential for internal conflict.

CHAPTER 8

1. Background

Prior to democracy in South Africa in the early1990s, political, social and economic oppres-sion ensured that the majority of South Africanyouth grew up vastly disadvantaged. BlackSouth African youth were forced to live inunderdeveloped, poor communities, with mini-mal government services, grossly inadequateschooling, practically non-existent sporting andrecreational facilities and little or no access toadequate health care and social development.The squalor of apartheid was the harsh realityfor the majority of the youth. Many of theyouth, however, were active in asserting theirneeds, forming youth organisations, joiningpolitical movements and protesting against theinjustices of the apartheid system. Young peo-ple participated vociferously in the national lib-eration struggle, fighting for freedom, equalityand justice. However, for many young people,this required huge sacrifices including educa-tion, social exclusion, living under the fear ofarrest, torture and detainment and having tomove away from their families. Many of theyouth were not afforded the opportunity todevelop and advance to their full potential.

The new democratic dispensation recognised theimportance of youth development in its transfor-mation agenda. Youth development remains acritical component of the full realisation of thevision of a new and better South Africa foundedon the values of human dignity, equality, humanrights, non-racialism and non-sexism.

The National Youth Commission was estab-lished on 16 June 1996 in terms of the NationalYouth Commission Act 19 of 1996. This waspart of the democratic government’s plan todevelop a comprehensive strategy to addressthe challenges facing young men and womenbetween the ages of 14 and 35 years.

The creation of a National Youth Commissionwas in direct response to the recommendationsof a Youth Summit convened by the thenDeputy President, Thabo Mbeki, in December1994. Representatives at the Summit hadcalled for the establishment of a Commissionthat would serve to highlight and monitor thesituation of young people, while co-ordinatingand initiating the development of appropriatepolicies and strategies geared to youth devel-opment.

Approximately 70% of South Africa’s populationis under the age of 35 years, while youth in theage group between 14 and 35 years make upclose to 40% of the total population. This fig-ure rises to 60% when the total population forthe continent is considered, and it is expectedthat this figure will rise to 80% by the year2020. Accordingly, it is to be expected thatyouth development will continue to grow inprominence as youth continue to grapple withsuch issues as poverty, employment opportuni-ties, education, substance abuse and theeffects of the scourge of HIV and AIDS.

Although the National Youth Commission is nota constitutional institution, it is a statutory bodythat is accountable to the President. ThePresident, however, has delegated his powersin this regard to the Minister in the Presidency.Furthermore, the Commission is funded througha transfer payment from the Presidency.Nonetheless, the Committee deemed it neces-sary to include the Commission in its review forthree main reasons: the importance of youthdevelopment; the fact that a committee ofParliament advertises, compiles a shortlist andinterviews for the appointment ofCommissioners; and the oversight role of theNational Assembly over the Commission as anorgan of state.

109THE NATIONAL YOUTH COMMISSION

CHAPTER 8

THE NATIONAL YOUTH COMMISSION

C H A P T E R 8


The preamble to the National YouthCommission Act 47 of 1997 acknowledges therole that the youth have played, and will con-tinue to play, in society, as well as the need toredress the imbalances of the past. As such,the Act establishes a National YouthCommission mandated to -

a) Co-ordinate and develop an integratednational youth policy;

b) Develop an integrated national plan for thedevelopment of youth in South Africa;

c) Develop principles and guidelines and makerecommendations to the Government forthe implementation of an integrated nation-al youth policy;

d) Co-ordinate, direct and monitor the imple-mentation of such a policy;

e) Implement measures to redress the imbal-ances of the past;

f) Promote uniformity of approach amongorgans of state, including provincial govern-ments, towards youth development;

g) Maintain close liaison with similar institu-tions, bodies or authorities in order to fostercommon policies and practices and to pro-mote co-operation;

h) Co-ordinate the activities of the provincialyouth commissions, and link those activitiesto the national youth policy; and

i) Develop recommendations relating to anymatters that may affect the youth.


The Act provides the Commission with exten-sive powers and functions that include:

a) Developing and monitoring of national policy;

b) Acting as a link between government, youthorganisations and the youth generally;

c) Maintaining close liaison with similar bodiesto foster common policies and practices andto promote co-operation;

d) Conducting research;

e) Monitoring and reviewing the policies andpractices of organs of state and other publicbodies with regards to youth matters;

f) Developing and conducting information andeducational programmes;

g) Evaluating legislation, and recommendingnew legislation to Parliament;

h) Preparing and publishing reports toParliament on any legal instrument relevantto youth matters; and

i) Monitoring the Republic’s compliance withapplicable international instruments.

3. Findings

The Committee received from the Commissiona written response to the questionnaire it hadcirculated. This document formed the basis forthe Committee’s discussions with theCommission, which took place on 24 January2007. The Committee’s findings were supple-


mented by written submissions, as well as fur-ther representations from the Commission,which were supplied at the Committee’srequest. From these, the following emerged:


a) The Committee notes that the Commission isnot a Chapter 9 institution, nor is it estab-lished in terms of any other constitutionalprovision. The legal basis for the establish-ment and functioning of the Commission isthe National Youth Commission Act 19 of1996.

b) The Commission is not autonomous and issituated in the Office of the President andaccounts directly to the Minister in thePresidency.

c) The Committee notes that there is some dis-cussion regarding the restructuring of theCommission. The Committee learnt that aconvention in June 2006 reviewed theimplementation of youth programmes. Theconvention proposed that a national youthdevelopment agency be established inSouth Africa merging the functions of theNational Youth Commission and theUmsobomvu Youth Fund to drive a seamlessapproach to the implementation of youthprogrammes. In essence, the agency willfind expression at national, provincial, dis-trict as well as local government levels. Thisagency should be given the authority totable and influence legislation critical toyouth development.

3.2. INTERPRETATION AND UNDERSTANDING OF MANDATE

a) The Committee is not satisfied that the

Commission is addressing its mandate ade-quately, as the Committee contends that theCommission’s mandate in law is more far-reaching than as interpreted by theCommission. The Commission has adoptedthe following strategic priorities: policy andresearch; advocacy and lobbying; co-ordina-tion and capacity building; and monitoringand evaluation. However, even within thesefocal areas, the Committee wishes to reiter-ate that the Commission is not addressing itsmandate adequately. For example, theCommission has not reported on theGovernment’s compliance with its interna-tional obligations regarding youth develop-ment.

b) The Commission is tasked with the co-ordi-nation and development of an integratednational youth policy. The Commissionadopted such a policy in 2000, but this poli-cy was never formally adopted as theCommission wished to personally hand overthe policy to President Mandela but theopportunity to do so never arose.Subsequently, the policy did not form thebasis of the National Youth DevelopmentPolicy Framework (2002 – 2007), which wasadopted by Cabinet in 2002. To date thepolicy has yet to be finalised, although theCommission has been instrumental in devel-oping the aforementioned National YouthDevelopment Policy Framework that hasbeen used extensively. It is evident that theCommission’s focus on the Framework hasbeen at the expense of other core activities.

c) The Committee notes that the absence of anintegrated youth policy creates enormousdifficulties, as there is nothing against whichto measure the success or failure of meas-ures aimed at youth development. At pres-ent, youth development initiatives are not


C H A P T E R 8

integrated, occurring in a haphazard wayacross various government departments andstructures.

d) The Commission informed the Committeethat it does not have the resources to imple-ment programmes aimed at youth develop-ment. Instead, it sees itself as an advisorybody rather than an implementer of pro-grammes. The Commission indicated that ithas adopted a limited approach to initiatingyouth development programmes by meansof piloting flagship programmes, which arethen handed over to the Executive for roll-out. This, however, creates a fragmentedapproach to youth development issues.

e) The Committee notes that the Commissionhas prioritised research. Thus, for example, itplans to launch the Youth DevelopmentResearch Institute by September 2007, hasconducted a study on localising youth devel-opment and is planning to conduct a desk-top study on establishing ward committeesand youth representation. While such initia-tives are commendable, the Committeenotes that the research is not empirical innature. More generally, regarding theCommission’s research function, theCommittee is of the view that theCommission should be strategic in the use ofits resources, particularly given the researchalready being conducted by the Youth Deskin the Office of the Presidency.

f) The Committee finds that the Commissionhas not been strategic in the use of its pow-ers to ensure that youth matters attractgreater visibility. For example, the Committeenotes that the Commission has not publishedany reports to Parliament on government’simplementation of human rights instrumentspertaining to youth, although the Commission

plans to lobby for the implementation andratification of the African Youth Charter by theSouth African Government.

g) The Commission states that the enablinglegislation does not provide it with adequatepowers of enforcement where there is neg-lect of youth development issues. However,the Committee contends that nothing pre-vents the Commission from receiving com-plaints and recommendations from the pub-lic, and youth in particular, on any matterrelating to youth development. Therefore, ifthe Commission is to have any relevance, itshould be able to receive and consider suchcomplaints and recommendations, whichwill provide a more meaningful basis for theCommission’s work. The Committee furthernotes that the Commission has not utilisedits powers to approach either the Presidentor Parliament with regard to any matterrelating to the exercise of its powers or theperformance of its functions.

3.3. APPOINTMENTS

a) The Commission consists of up to five full-time members, who are appointed by thePresident on the advice of a committee ofParliament for a period not exceeding fiveyears. This term of office is, however,renewable. At present, five Commissionersare appointed for three years.

b) The criteria for appointment and the appoint-ment process are set out in the provisions ofthe enabling legislation. Commissionersmust be fit for appointment on account oftheir qualifications, knowledge or experiencerelating to the functions of the Commission.The Committee contends that there is no rea-son why the appointment of Commissionersshould be limited to persons under 35 years


of age. There may be other persons, overthe age of 35, who are suitably qualified andexperienced in the area of youth develop-ment and should therefore not be excludedfrom appointment.

c) In practice, the matter of appointments isreferred to the Joint Monitoring Committeeon Improvement of Quality of Life and Statusof Children, Youth and Disabled Persons,which advertises, compiles the short list andconducts the interviews.

d) The Committee finds that the present sys-tem does not allow for continuity in theappointment of Commissioners. Somedegree of continuity is necessary whenappointing Commissioners in order to avoidloss of institutional memory, thereby under-mining the Commission’s effective and effi-cient functioning while creating a situationin which Commissioners are overly depend-ent on the Youth Desk in the Presidency forcritical strategic support.


a) The Committee is of the view that theCommission should be more proactive andcreative in its efforts to ensure greater visi-bility of its work. This can be achievedthrough various means, including targetedcampaigns that address the issues that mostaffect the youth, as well as the dissemina-tion of pamphlets and displaying posters atthe many government and parliamentaryaccess points.

b) The South African Youth Council was formedfor the purpose of co-ordinating andenhancing the participation of civil society inyouth matters. The Committee is not satis-fied that the Commission’s engagementswith civil society are sufficiently structured.


a) The Commission states that there is no over-lap between its work and that of the Chapter9 institutions, since none of these institu-tions are tasked with monitoring and co-ordinating the integration of youth develop-ment.

b) The Committee rejects this. Not only doessection 8(1)(a)(vi) of the enabling legisla-tion task the Commission with maintainingclose relations with institutions, bodies orauthorities similar to it in order to fostercommon policies and practices and to pro-mote co-operation, but the Commission isspecifically mandated to make recommen-dations on policy concerning the commonal-ity and uniqueness of gender, the provisionof equal resources to the genders and theprinciple of equal representation of genderson administrative and other bodies. A rela-tionship with the Commission for GenderEquality would therefore appear to be anobvious necessity.

c) The Committee learnt that the Commissionhas worked closely with the ElectoralCommission to develop a plan to mobiliseyouth participation in democratic processes,particularly the elections. This partnershipinvolves youth participation in voter educa-tion programmes, joint media appearances,and facilitating partnerships with youthorganisations. In addition, the Commissionstated that there had been meetingsbetween it and the Chapter 9 institutions forthe purposes of information sharing.However, these meetings appear to occur onan ad hoc basis, the last such meeting hav-ing been in May 2006.


C H A P T E R 8


a) The Commission is required to report to thePresident at least once a year, and thePresident is tasked with tabling the reportpromptly in the National Assembly.

b) The Commission’s interaction with Parlia-ment is largely through the Joint MonitoringCommittee on Improvement of Quality ofLife and Status of Children, Youth andDisabled Persons, although the Commissionbriefs other parliamentary committees fromtime to time on specific issues. Given thebroad scope of the Commission’s mandate,the Committee is of the view that there is,however, room for greater interactionbetween the Commission and other parlia-mentary committees.


a) It was put to the Committee that theCommission’s interaction with the Executiveoccurs chiefly through the Minister in thePresidency and by means of reporting viathe Social Cluster of Cabinet. Other less for-mal mechanisms for interaction with theExecutive exist through interactions withvarious Ministers and participation in variousinter-ministerial forums.

b) The Committee finds that the Commissionhas a close working relationship with thePresidency. This is the result of the specialnature of the legislation. The Commission’srelationship with the Executive therefore dif-fers from the relationship other Chapter 9bodies have with the Executive.

c) The Committee finds that the Presidency,through its Youth Desk, has provided theCommission with critical strategic support,

particularly while the new Commissionerstook up their positions in mid-2006.

d) The Committee finds that there appears to beconsiderable overlap between the Commis-sion’s mandate and that of the Youth Desk.Certainly there is a close working relationshipbetween the two structures. A Youth Deskwas set up in the Presidency in 2005. TheMinister in the Presidency informed theCommittee that the Youth Desk is directlyintegrated into the institutional structures ofthe Presidency, performing an integrating andfacilitative role with regards to youth devel-opment issues by ensuring, amongst others,that the policies and programmes proposedby the Commission are taken through theCabinet cluster system. The Committee is ofthe view that this is a serious overlap, in thesense that if the Commission is formulatingpolicy, it then clashes with the functions ofthe Youth Desk in relation to policy formula-tion. The Youth Desk also facilitates andadministers the Presidential Youth WorkingGroup and youth initiatives associated withthe Accelerated and Shared Growth Initiativefor South Africa (AsgiSA), as well as acting asa link between national line departments andthe actual implementation of the NationalYouth Service.

e) The Commission informed the Committeethat it has experienced difficulties in secur-ing the co-operation of all governmentdepartments, although this has improvedsince 2006 when an unprecedented numberof departments established youth direc-torates. Most government departmentshave reduced issues of youth developmentto skills development, and youth develop-ment is not generally considered to includethe provision of houses and basic servicesfor youth.


f) The Committee finds that the various institu-tions or structures created within govern-ment to focus on youth issues do not com-plement each other and that very oftenthere is a degree of duplication, which is awaste of resources.

g) The lines of accountability for youth devel-opment institutions are blurred and confus-ing. There are a multiple number of bodiesdealing with youth development as well asthe State-established Umsobomvu Fund.This fund focuses on skills development andemployment as opposed to the entire scopeof youth economic participation. However, itdoes not seem to the Committee that thereis much interaction and thus there is very lit-tle guarantee that policy emerging from theNational Youth Commission will find expres-sion in the Umsobomvu Fund or in othergovernment departments for that matter.

3.8. RELATIONSHIP WITH THEPROVINCIAL YOUTH COMMISSIONS

a) The Commission’s relationship with theprovincial youth commissions is not clear.The Commission states that the enablinglegislation does not provide it with the nec-essary authority concerning the provincialyouth commissions. In this regard, theCommittee recommends that the Commis-sion formalise the Chairperson’s Forum,which is the vehicle for the Commission’sinteraction with the provincial commissions,as a means of regularising its authority. TheCommittee also notes that there is very lit-tle information on the specifics of the com-position, powers, budget and activities ofthe provincial commissions in the legisla-tion. It is critical that this be addressed.

b) The Committee is unable to establish whatthe precise functions or terms of referenceof these provincial commissions are orshould be.


a) The Committee notes that the lines ofaccountability and authority are not clearlydrawn. The Committee learnt that on occa-sion there has been a blurring of functionsbetween the Commissioners and the secre-tariat, as sometimes the secretariat arecalled upon to perform what is essentially apolitical function.

b) The Committee noted that the Commissionhad several vacancies in key positions, forexample, the Chief Financial Officer and theChief Executive Officer. This means that theadministrative functioning of the Commis-sion is compromised.

c) The Committee notes that the Commission-ers were unable to attend the initial meet-ing with the Committee in September 2006,as they were all unavailable. However, theCommittee expressed the view that thereneeded to be a clear policy on overseas vis-its.


a) The Commission stated that its fundingarrangements are inadequate. It does nothave an opportunity to motivate for its ownbudget with National Treasury as the budg-et process is led by the Presidency. TheCommission’s budget is allocated from thePresidency’s Vote. The amount allocatedthen informs the Commission’s businessplan.


C H A P T E R 8



) The Committee notes that the Commission’sfunding arrangements are unusual, as theCommission’s budget falls under that of thePresidency. The Committee is also of the viewthat the allocation of financial resources to theCommission is not modest. Table 1 below setsout the Commission’s allocation and expendi-ture since 2003/04, as well as the amounts ithas been allocated in terms of the MediumTerm Expenditure Framework.

Table 1: Income and expenditure 2003/04 –2009/10

28

4. General Conclusions

a) When viewed against the Committee’s terms ofreference, the Commission, as it is presentlyformed, does not serve its purpose. TheCommittee presents certain recommendationsfor the rationalisation of the role and functionof the Commission in order to enhance its rele-vance.

b) The Committee considers the appointment pro-cedures in respect of the Commission to be,generally speaking, appropriate. However, thepresent arrangements have resulted in anentirely new Commission being appointed enmasse in 2006, with an accompanying loss ofinstitutional memory with reference to the pre-vious Commission. General recommendationsare made in Chapter 2 of this report to enhancea more professional approach.

c) Institutional governance mechanisms requireattention, particularly regarding clarification ofthe powers and functions of the ChiefExecutive Officer vis-à-vis the Commissioners.

d) The parliamentary mechanisms for oversightof the Commission are inadequate. Generalrecommendations are made in Chapter 2 ofthis report for the improvement of parliamen-tary mechanisms of oversight andaccountability.

e) The budget process and funding model affectthe Commission’s ability to carry out its man-date. The Committee makes general recom-mendations in this regard in Chapter 2 of thisreport for the improvement of the budgetprocess.

f) The Commission has a disclosure mechanismin terms of which all senior managers andCommissioners sign an annual disclosure form.This is done by way of an affidavit, and theforms are then submitted to the Presidencyand are dealt with in line with the PublicService Regulation Framework.

5. Recommendations

a) The Commission is not particularly effective incarrying out its mandate. In particular, theCommittee notes the similarity between theCommission’s mandate and the tasks being

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Budget allocation 13 766 13 488 17 983 19 228 20 614 21 647 22 621

Additional funding 2 322 1 728 2 045

Expenditure 15 892 17 015 18 656

Surplus/(Deficit) (196) (1 815) 1 3 72

performed by the Youth Desk in the Office ofthe Presidency. Despite submissions from vari-ous youth formations that the Commission beabolished, the Committee is mindful of theimportance of youth development in SouthAfrica, as well as the many challenges thatface this sector of our population.

b) In addition, the Committee is of the view thatit is an anomaly that there is no specialisedstructure devoted to promoting children’srights, despite their vulnerability as a group.There need to be specific institutional arrange-ments for the voice of our young people.Accordingly, the Committee is of the view thatthe Commission’s mandate should be widenedto encompass both children and the youth andthat the Commission should be given powersto receive complaints, investigate matters andactively lobby. There is indeed already adegree of overlap as the Commission’s man-date includes children aged 14 to 18 years.

c) The Committee is accordingly proposing a two-stage process for the future, namely that thereconstituted Commission devoted to childrenand youth issues should fall under the umbrel-la of the Human Rights Commission, and thata dedicated commissioner for children andyouth be appointed.

d) The Committee further proposes that in theinterim, whilst the recommendation set out in(b) above is addressed, a number of recom-mendations to improve the efficiency andeffectiveness of the Commission be imple-mented forthwith:i. The Commission’s enabling legislation

should be urgently reviewed and amendedso as to include both the youth and chil-dren. Furthermore, in addition to theCommission’s existing powers, it should bemandated and capacitated to lead cam-paigns actively, hear and investigate com-plaints and undertake research on impor-

tant matters such as child abuse, violenceamongst our children and youth, drugabuse and so forth.

ii. The reconstitution and revitalization of theForum of Independent Statutory Bodies, avoluntary body, should be actively encour-aged in order to improve co-ordinationbetween Chapter 9 and associated institu-tions.

iii. The Commission should develop moreinnovative ways to increase its visibility.

iv. Mechanisms to improve the relationshipand interaction between Parliament andthe Commission should be determined. Therole of the proposed unit in the Office of theSpeaker of the National Assembly dis-cussed in Chapter 2 of this report shouldalso be considered in this regard.

v. In general, the appointment proceduresshould be reviewed. The Committeemakes proposals in this regard in Chapter 2of this report.

vi. The budget process and location of theCommission’s budget allocation should berevised in accordance with the recommen-dations of the Committee in Chapter 2 ofthis report.

vii. The directorships, partnerships and consul-tancies of Commissioners and senior offi-cials should be disclosed in the annualreports. In addition, the disclosures ofpecuniary and other interests ofCommissioners and staff members must bekept available in a register and an indica-tion must be given in the annual report ofwhere such information is available.General recommendations are made in thisregard, in Chapter 2 of this report.


C H A P T E R 8

CHAPTER 9

1. Background

The marginalisation and suppression of indige-nous languages in South Africa was part of thesystematic and deliberate oppression of themajority by the apartheid government. Byrefusing recognition to indigenous cultures andlanguages, the apartheid government strippedpeople further of their heritage, dignity, identi-ty and sense of belonging. At the same time,the languages of the ruling minority were ele-vated and developed through considerablestate assistance. English and Afrikaans, recog-nised as the only two official languages duringthe apartheid era, were the medium of instruc-tion at schools, and all government informationand communication were provided in theselanguages only. This had the effect of system-atically diminishing the status, usage anddevelopment of indigenous languages and alsocreated access barriers to the limited govern-ment services provided to the majority of thepopulation.

It was therefore a key consideration during theconstitution-making process in South Africa toprovide due recognition to the historicallydiminished indigenous languages in respect oftheir use and status. In our presentConstitution, there is considerable emphasis onlanguages.

As part of the founding provisions, the 1996Constitution in Chapter 1 recognises eleven offi-cial languages of South Africa, including nineindigenous languages. Furthermore, theConstitution requires the state to take practicaland positive measures to elevate the status andadvance the use of the indigenous languages.

To ensure the development of all the officiallanguages in South Africa, with particular atten-tion to the previously marginalised languages,

the Constitution also makes provision in section6(5) for the establishment of a Pan SouthAfrican Language Board. The Board was estab-lished by the Pan South African Language BoardAct 59 of 1995 and its first members wereappointed in the same year.


The Pan South African Language Board is estab-lished in terms of Chapter 1 of the Constitution.Its constitutional position therefore differsmarkedly from the Chapter 9 bodies underreview in this report. Unlike these bodies, theBoard does not have its independence andauthority guaranteed in the Constitution; nei-ther is there a constitutional obligation placedon the Board to act without fear, favour or prej-udice when implementing its mandate,although these guarantees are contained inlegislation. Furthermore, no provision is madein the Constitution for the Board to be account-able solely to the National Assembly.

The constitutional role of the Board must beunderstood in the context of the constitutionalduty placed on the state to take practical andpositive measures to elevate the status andadvance the use of indigenous languages inorder to ensure that all official languages enjoyparity of esteem and are treated in an equi-table manner.

The Board is therefore created in section 6(5) ofthe Constitution to assist the state in this task(Annexure 1). It provides for the creation of theBoard by national legislation and requires theBoard to promote, and create conditions for, thedevelopment and use of all official languagesin South Africa, as well as the Khoi, Nama andSan languages and sign language.

119THE PAN SOUTH AFRICAN LANGUAGE BOARD

CHAPTER 9

THE PAN SOUTH AFRICAN LANGUAGE BOARD

C H A P T E R 9

The Board must also promote and ensurerespect for all languages commonly used bycommunities and for religious purposes inSouth Africa, including German, Greek, Gujarati,Hindi, Portuguese, Tamil, Telegu, Urdu, Arabic,Hebrew and Sanskrit.

The Pan South African Language Board Act pro-vides for the recognition, implementation andfurtherance of multilingualism in South Africaand the development of previously margin-alised languages. In terms of the Act, theobjects of the Board are, amongst others, topromote respect for, and ensure the implemen-tation of, the following principles:

a) The creation of conditions for the develop-ment and promotion of the equal use andenjoyment of all the official South Africanlanguages;

b) The prevention of the use of any languagefor the purposes of exploitation, dominationor division;

c) The promotion of multilingualism;

d) The promotion of the provision of translationand interpreting facilities;

e) The further development of the officialSouth African languages;

f) Fostering respect for languages other thanthe official languages; and

g) The promotion of respect for, and the devel-opment of, languages used by communitiesand for religious purposes.

The powers of the Board conferred on it by theAct may be grouped broadly as follows: adviso-ry functions in relation to functions of the

Executive; investigation and remedy of com-plaints; promotion of language rights andusage; and co-ordination of language planning.

3. Findings

The Committee met with the Pan South AfricanLanguage Board on 31 January 2007. It isregrettable that the Chairperson of the Boardwas unable to attend this meeting. The Board’swritten response to the questionnaire, variouspublic submissions, and the Committee’s con-sideration of relevant documents such as theannual reports and budgets of the Boardformed the basis of the discussions. TheCommittee reports on the following findings:

3.1. CONSTITUTIONAL AND LEGAL MANDATE

a) The Committee notes that there is a seriousdiscrepancy between the provisions of theConstitution and the provisions of the PanSouth African Language Board Act regardingthe main objective of the Board. Section6(4) of the Constitution states that “all offi-cial languages must enjoy parity of esteemand must be treated equitably”(Committee’s emphasis). The Act on theother hand states that one of the mainobjectives of the Board is to create “condi-tions for the development and for the pro-motion of the equal (Committee’s emphasis)use and enjoyment of all the official SouthAfrican languages”.

b) When this discrepancy was pointed out tothe members of the Board, they informed usthat the Board preferred the construction ofits mandate in the Act. The Committeenotes that this view is not constitutionallytenable because the Constitution is the high-er law and all law that is in conflict with the


Constitution is invalid to the extent of theconflict. Moreover, the Committee is per-plexed at the Board’s assertion in thisregard, given that the “equal” use andenjoyment of all languages in South Africawould have enormous and far-reachingsocial, political, business and resource impli-cations and would not be possible. TheCommittee draws the special attention ofthe National Assembly to this importantmatter.

c) It emerged during the Committee’s interac-tions with the Board and from consideringthe documentation at the disposal of theCommittee that the Board evidently doesnot fully appreciate its constitutional andlegal mandate. The Committee feels thatthe Board has a very narrow focus and hastherefore not fully pursued its extensive leg-islative mandate nor has made use of itsextensive powers. For example, theCommittee was unable to find significantevidence either in documentation or in itsinteractions with the Board that the Boardhas implemented programmes to promotethe use of sign language, to promote theuse of interpretation and translation facili-ties, to investigate alleged abuses of a lan-guage right, policy or practice, to facilitateco-operation with language-planning agen-cies outside South Africa or to monitor theobservance of constitutional and legislativeprovisions regarding the use of language.

d) The Committee notes the Board’s submissionduring discussions that it had standardisedinterpretation, translation and editing quali-fications and had developed guidelines fortranslation and interpretation services.

e) The Board has also used a considerableamount of its available resources (more than

R9 million, or almost one third of its budget,in 2006) in its lexicography activities and thedevelopment of dictionaries for the differentlanguages. The Committee turns to this inrelation to the Department of Arts andCulture later in this Chapter.

f) The Committee is of the view that the Boardhas misconstrued its mandate as it relates tointeraction with the public. The Constitutionand the Act state that the Board must pro-mote all official languages as well as respectfor multilingualism. In fact, the Act statesthat the Board has a legal duty actively to“promote an awareness of multilingualismas a national resource.” This necessarilyrequires the Board to embark on informationand public education campaigns as igno-rance and prejudice against multilingualismare amongst the greatest obstacles in itsrealization. This has not been done. TheCommittee notes that, because of this mis-apprehension regarding its mandate, theBoard has unfortunately not devised orimplemented a coherent and sustained pub-lic education campaign. Instead, it has beeninvolved only in ad hoc and reactive cam-paigns, thereby falling far short of what isrequired by the Constitution.

g) The Committee notes that in terms of the Actthe Board also has the power to monitor theobservance of the constitutional provisionsregarding the use of language and the con-tents and observance of any existing and newlegislation, practice and policy dealing directlyor indirectly with language matters at anylevel of government. However, the Commit-tee was informed by members of the Boardthat there has been no systematic monitoringof this kind – merely “informal checking to seewhether there has been compliance”. TheCommittee considers it unfortunate that no


C H A P T E R 9

details are available about the monitoring ofthe observance of the relevant constitutionalprovisions as this makes it very difficult toascertain the effectiveness of the Board.


a) Sections 5 and 10 of the Pan South AfricanLanguage Board Act provide for the appoint-ment of the Board, a Chief Executive Officerand other staff and establishes the Board asthe policy-making body. However, TheCommittee was told by members of theBoard that the legislation is not clearenough about the exact relationshipbetween the members of the Board and thestaff and that there have been someinstances where the Board members haveencroached on management responsibilitiesbest left for the Chief Executive Officer todeal with, instead of focusing on governanceand policy issues. The Committee finds thislack of clear lines of authority between theBoard and the staff deeply troubling. Theroles of part-time members of the Board arealso not clearly defined.

b) Members of the Board also told theCommittee that there was a need toimprove the institutional governancearrangements and expressed the view thatit was imperative that clear policy guidelinesbe provided for the Board members toenable them to acquaint themselves withtheir role and the extent of their mandatewithin the functioning of the institution.The Committee is of the view that this pas-sive attitude is unhelpful and counter-pro-ductive and believes that Board membersshould take pro-active steps to clarify theextent of their mandate.

c) The Committee also notes that the Board

has not ensured that the relevant manage-ment policies and procedures are put inplace to ensure the effective and account-able running of the Board’s affairs and toguard against wasteful or unwarrantedexpenditure. The Committee notes withconcern that the Auditor-General provided aqualified audit report for the financial year2004/05. The report pointed out that mostpolicies or procedures for internal controlsand efficient risk management were notapproved or updated regularly. TheCommittee was not presented with any evi-dence that this has been rectified.

d) The Committee also notes that the NationalLexicography Units, which fall under theauthority of the Board, have not reported tothe Board in an adequate fashion. Accordingto the Auditor-General’s report, during the2003/04 financial year only four of theeleven units submitted their financial state-ments, while only one submitted the state-ments in the required format. During2004/05 only one unit did not submit afinancial statement, while three of thosewhich had submitted statements did notcomply with the requirements. TheCommittee is concerned that the Boardfailed to take the necessary steps immedi-ately to ensure that all the units report inthe required manner.

e) In terms of the Pan South African LanguageBoard Act, the Board appoints the ChiefExecutive Officer on such terms and condi-tions as the Board may determine. This nec-essarily means that the Board has authorityover the Chief Executive Officer and has aduty to oversee his or her work. TheCommittee finds that the Board was unableor unwilling to give the appropriate directionto the former Chief Executive Officer and


that internal disputes accordingly resulted.There was a desperate lack of internal dis-pute resolution mechanisms between theBoard and the Chief Executive Officer. TheBoard also informed the Committee that,because the former Chief Executive Officerwas so strong-willed, relations with theDepartment of Arts and Culture had becomestrained. Relations with the Departmentseemed to have improved since the depar-ture of that Chief Executive Officer.

f) The Chief Executive Officer is a member ofthe Board, participates in the Board’sdebates and has the rights and duties ofother members, but does not vote. TheCommittee is of the view that while the par-ticipation of the Chief Executive Officer inthe meetings of the Board is an operationalrequirement, this arrangement leads to ablurring of responsibilities and needs to beaddressed.

g) The Committee advises that the Boardshould also develop and approve an internaldispute resolution mechanism.

h) The Board confirmed, in its response to theCommittee during deliberations, that it doesnot have mechanisms for the ChiefExecutive Officer, the Chairperson, theDeputy Chairperson and other members ofthe Board to disclose private financial inter-ests or other relevant involvements.

i) The Committee notes that regulations issuedin terms of the Act require the ChiefExecutive Officer to seek the Board’s permis-sion to perform outside remunerative work.However, the Act prohibits members of theBoard or staff from conducting investigationsin respect of matters in which they havepecuniary or other interest that might pre-

clude them from exercising their powers,duties and functions in a fair and unbiasedmanner. If a member of the Board or a staffmember fails to disclose such interests, theBoard may take such steps, as it deems nec-essary to ensure a fair and unbiased investi-gation.

j) The Committee recommends that, in com-mon with other bodies, the Board shouldhave a register of interests and any director-ships or partnerships held by members ofthe Board should be published in its annualreport.

k) The Committee notes with concern that theBoard does not have in place a mechanismthat would allow the public to raise com-plaints about its work. Moreover, theCommittee was presented with evidencethat the Board does not always follow up onthe complaints it has received.


a) As stated above, the approach of the Boardto public awareness is based on a misunder-standing of its legal mandate. This hasresulted in the absence of a clear and sus-tained public education campaign. This sit-uation changed in 2003 when, in responseto a decline in complaints lodged by thepublic, the Board launched a linguistichuman rights awareness campaign. TheCommittee is not satisfied that this piece-meal approach to public awareness and out-reach is adequate, appropriate and goodvalue for money.

b) The statistics at the disposal of theCommittee suggest that the Board does nothave the kind of public profile that theimportant work it is tasked to do warrants


C H A P T E R 9

and requires. Moreover, the Committee con-siders the decline in the number of com-plaints received by the Board to be indica-tive of the decline in its public profile.During the 2002/03 financial year the Boardreceived 83 complaints, during 2003/04 itreceived 22 complaints and during 2004/05it received 33 complaints.

c) The Committee was informed that the Boardreceived only about 400 complaints since itsinception. The slight increase in 2004/05was the result of an intervention by theBoard to raise the public profile of its lan-guage human rights initiative. The generaldecline, however, points to the notion thatthe Board may have become surplus torequirements. The Board appears to havelittle impact. This brings into question itscontinued existence in its current form.

3.4. APPOINTMENTS

a) The Minister of Arts and Culture appoints nofewer than eleven and no more than fifteenpersons as members of the Board. When itbecomes necessary to fill vacancies on theBoard, the Minister, after consultation, withthe Portfolio Committee on Arts and Culture,appoints an ad hoc committee of no fewerthan nine persons to invite the public to nom-inate persons for appointment. This ad hoccommittee submits to the portfolio commit-tee a shortlist of no more than 25 candidatesfor the portfolio committee to consider.

b) The portfolio committee interviews the can-didates and submits a final shortlist of nomore than 20 names to the Minister forappointment. The Minister then appointsmembers of the Board from the names thatappear on the shortlist after consulting withthe portfolio committee. Members of the

Board are appointed for a term of five yearsand are eligible for re-appointment for onemore term.

c) The Act sets minimum criteria that bind theMinister when appointing members to theBoard. It requires that the Board of 11 to 15members should be broadly representativeof the diversity of users of the official lan-guages. It also requires that members of theBoard must be supportive of the principle ofmultilingualism and must have languageskills, which may include interpreting, trans-lation, terminology, lexicography, literacyteaching and language planning.

d) The Board elects one of its members as theChairperson and another as Deputy Chair-person. The Chairperson and the DeputyChairperson hold office for a period of notmore than two years after which electionsare held for a new chairperson and deputychairperson. This approach seems to havehampered the efficient functioning of theBoard. Since 2002 the Board has had threechairpersons. It has led to a loss of continu-ity and focus and has further underminedthe effectiveness of the Board. TheCommittee is of the view that, in the eventof the Board being retained in its presentform, this rotation of chairpersons should bereviewed and a chairperson should beappointed for a full 5-year term.

e) The term of the current members of theBoard ended on 30 February 2007. Althoughthe Act does not provide for an extension ofthe term of office of members, the Ministerextended the term of office of the currentmembers until the end of June 2007. At thetime of writing this report, the PortfolioCommittee on Arts and Culture had agreedon a final shortlist of candidates for appoint-


ment. The Portfolio Committee felt that onlyone member of the Board should be recom-mended for reappointment, given the under-performance of the Board. In the light of therecommendations made by this Committeeabout the reconstruction of the Pan SouthAfrican Language Board and the Commissionfor the Promotion and Protection of theRights of Cultural, Religious and LinguisticCommunities, it may be wise to put a mora-torium on the appointment of a new Board.


a) Unlike Chapter 9 institutions, the independ-ence of the Board is not guaranteed in theConstitution. As pointed out above, theBoard’s founding Act does provide for itsmembers to serve impartially and independ-ently and exercise and perform their powersand functions in good faith and without fear,favour, bias or prejudice, subject only to theConstitution and the Act. The Act also statesthat no organ of state may interfere with theBoard or its members and requires allorgans of state to afford the Board suchassistance as may be reasonably required.

b) Despite these legal assertions of impartialityand independence, the Act invests theMinister of Arts and Culture with wide pow-ers over the Board. The Minister may termi-nate a member’s membership of the Boardif the Minister is satisfied that the memberno longer complies with the requirementsfor membership of the Board; if the memberhas requested the Minister to be removed;if the member has been absent for twoconsecutive meetings of the Board withoutleave; or if, on reasonable grounds, themajority of the members recommend theremoval of the member. The Minister may

also dissolve the Board on any reasonablegrounds. The Committee notes that theseprovisions are extraordinarily broad andafford the Minister vast discretionary powersover the Board. Such authority afforded tothe Minister places a question mark over theBoard’s independence.

c) The Committee makes recommendations inChapter 2 of this report regarding the powersof Ministers in respect of the appointmentprocedures of the bodies under review.

d) Given these powers accorded to the Ministerby the Act, it is not surprising that the Boardinformed the Committee that its relationshipwith the Department of Arts and Culture isnot cordial. The Committee was informed ofsevere tension between the Board and theDepartment and a view from the side of theBoard that the Department was encroachingon its mandate on language development,which, in turn, it felt, compromised its inde-pendence.

e) This view contrasted sharply with a viewfrom the Department that it sees the devel-opment of languages as one of its primaryresponsibilities. To that end the Departmenthas undertaken initiatives involving the cre-ation of extensive capacity in terminologydevelopment and management; the co-ordination and advancement of human lan-guage technologies; language policy devel-opment; the provision of translation, editingand interpreting services; literature promo-tion and development; the establishment oflanguage research and development cen-tres; and the development of telephoneinterpreting services for South Africa.


C H A P T E R 9

f) The Department has also established theNational Language Forum which co-ordi-nates the activities of language units withingovernment and legislatures, theCommission for the Promotion and Protec-tion of Cultural, Religious and LinguisticCommunities and the Board. The Depart-ment claims that national and provincialdepartments look to the National LanguageForum for guidance on language policyimplementation. There has also been estab-lished within the Department a NationalLanguage Services Directorate that is taskedwith the development of languages, has alsobeen established within the department.

g) The Department maintains that there is nooverlap between its responsibilities andthose of the Board. Despite the provisions ofthe Act which, as has been pointed outabove, give the Board a broad mandate topromote multilingualism and indigenous lan-guages, the Department views the Board asan advisory body that may monitor thedevelopment of languages. The Departmentmaintains that the Board cannot be expectedto do the work of language developmentand be watchdog at the same time and thatit is best suited to investigate complaints,conduct research, and monitor and makerecommendations to appropriate institutions.

h) The Committee is of the view that the pres-ent impasse between the Board and theDepartment is untenable and needs to beresolved without delay. The Committee rec-ommends that the National LexicographyUnits established by the Board be trans-ferred to the National Language ServicesDirectorate of the Department. TheCommittee is of the view that this is thebest course of action because -

i. The Board does not have the requiredhuman and financial capacity to dealadequately and comprehensively withthe important task of developing indige-nous South African languages. In con-trast the National Language ServicesDirectorate situated in the Department iswell-funded and better equipped to dealwith the development of South Africa’sindigenous languages; and

ii. The Board as such is not involved in theissue of language development, but hasfor all intents and purposes delegatedthis task to the National LexicographyUnits. The rest of the Board’s workrelates to raising public awareness, dis-pute resolution, the promotion of multi-lingualism and the promotion of respectfor other languages.

i) In order to facilitate this change, theCommittee recommends that the Board del-egate some of its members and the headsof the Lexicography Units to meet with rep-resentatives of the Department to map theway forward.


a) Unlike the other institutions under review,the Board is not explicitly made accountableto the National Assembly. However, theBoard does submit its annual report to theNational Assembly, which refers it for con-sideration to the Portfolio Committee of Artsand Culture. The members of the Boardinformed the Committee that they felt therewas a complete lack of constructive engage-ment by the National Assembly with itsannual reports. They also expressed frustra-tion at the general lack of engagement bythe National Assembly with its work. The


National Assembly has not taken any actionto deal with the recommendations and frus-trations contained in the annual reports.

b) Apart from its annual report, the Act alsorequires the Board to submit quarterlyreports to Parliament to furnish details of itsactivities. It is unclear to the Committeewhether these quarterly reports are regular-ly submitted and whether the PortfolioCommittee engages with these reports. TheCommittee also notes that the Board has notrequested a special debate in either of theHouses of Parliament on important aspectscontained in any of its reports.


a) The Pan South African Language Board Actrequires the Board to promote close co-operation between itself and other organsof state, institutions and persons involved inthe development of languages. However,the Committee is unaware of the Board hav-ing initiated any activities to promote suchclose co-operation with organs of state, orany persons or institutions.

b) There is a clear overlap between the mandateof the Board and that of the Commission forthe Promotion and Protection of the Rights ofCultural, Religious and Linguistic Communities.Both institutions are empowered to promotethe rights of marginalised linguistic communi-ties and to conduct research on this issue.While the Commission ostensibly deals withthe matter from a rights-based perspectiveand the Board from a more practical perspec-tive, the Committee is of the opinion that –apart from the work done by the LexicographyUnits of the Board – there is in principle verylittle difference between the mandates of thetwo institutions.

c) The Committee further notes with concernthat, despite this overlap, the Board only hasa tentative, unsigned co-operation agree-ment with the Commission. The Committeewas also informed that these two bodieshave not formalised their working relation-ship in any other way, although they do co-operate on an informal and ad hoc basis,

d) The Committee received submissions fromcivil society pointing out this overlap and thelack of formal co-operation between thesebodies and suggesting that steps should betaken to address this matter. The Committeeis of the view that the absence of such anagreement leads to duplication and rendersboth institutions less effective than they oth-erwise would have been. The duplication ofmandates also has serious cost implications.

e) In the light of these considerations, theCommittee recommends that the Board beamalgamated with the Commission for thePromotion and Protection of the Rights ofCultural, Religious and LinguisticCommunities and that a new institution, theCommission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities (including thePan South African Language Board), be cre-ated to face the important challenges ofespecially the promotion of indigenous lan-guages in South Africa. This proposal isaddressed further below.

f) There is a cross-referral of cases and infor-mal co-operation with the Human RightsCommission: the Commission refers casesinvolving language rights violations to theBoard and the Board refers human rightsissues to the Commission. The Committeeagain emphasises the importance of effi-cient record-keeping, tracking and monitor-ing of referrals.


C H A P T E R 9


a) The budget of the Board has increased fromjust over R19 million in 2002/03, to justover R29 million in 2005/06. Of thisamount, just more than R9 million, or aboutone third of the total budget, was allocatedfor the lexicography work of the NationalLanguage Units. The salary expenses andthe expenses of the Board accounted foranother R9 million, which means that onlyone third of the available money was spenton the mandated activities of the Board.The Committee also notes with concern therelatively high amount budgeted for theoffice of the Chief Executive Officer.

b) The Committee notes that the Board hasbeen setting up provincial offices in severalprovinces and that the cost of these provin-cial offices takes up a sizable amount of thebudget. The Committee was unable to iden-tify the demonstrable benefits of suchoffices vis-à-vis the realisation of the Board’slegal and constitutional mandate and relat-ed activities, which require considerableattention. The Committee is of the opinionthat these offices are not cost-effective andthat they should be closed as soon as ispracticable. The Committee makes moredetailed recommendations in this regard inChapter 2 of this report.

c) The budget for the Board for the past fouryears is summarised in the following Table:

Table 1: Income and Expenditure of the PanSouth African Language Board

29


29 The Board’s submission to the Committee

ITEM 2002/03 2003/04 2004/05 2005/06

INCOME

Grant Received 18 645 000 21 634 000 24 677 000 26 976 000

Other Income 228 680 490 287 45 009 229 914

Interest Received 648 253 1 313 006 311 496 306 410

Total Income 19 521 934 23 437 293 25 033 505 27 512 324

EXPENDITURE

Total Expenses 19 302 026 21 924 587 29 928 505 29 126 342

SURPLUS/(DEFICIT) 219 907 1 512 706 (4 895 000) (1 614 000)


The Committee draws the following generalconclusions in addressing the specific matterscontained in its terms of reference:

a) While the current and intended constitution-al and legal mandates of the Pan SouthAfrican Language Board are still suitable forthe South Africa of today, the contribution ofthe Board to democracy is limited.

b) Reorganisation of the Board will bring abouta sharper focus on its constitutional andlegal mandates and avoid duplication ofwork with that carried out by theCommission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities and theDepartment of Arts and Culture.

c) The appointments procedure for the Boardrequires revision, particularly to assert fur-ther the independence of the Board. TheCommittee makes general recommenda-tions in this regard in Chapter 2 of thisreport.

d) Institutional governance arrangements ofthe Board require attention. This includesestablishing clear lines of accountabilitybetween the Board and the Chief ExecutiveOfficer and a stringent system for disclosureof interests.

e) The Board has a legal requirement to pro-mote close co-operation with organisationsperforming similar work to its own. Littleevidence of such co-operation is evident.This requires serious attention.

f) The relationship between the Board and theNational Assembly, through the Portfolio

Committee on Arts and Culture, is unsatis-factory. The Committee makes general rec-ommendations in this regard in Chapter 2 ofthis report.

g) Funding of the Board appears to be ade-quate. The budget process arrangements,however, require amendment to assert fur-ther the independence of the Board. TheCommittee makes general recommenda-tions in this regard in Chapter 2 of thisreport.

5. Recommendations

a) As pointed out above, the Committee is ofthe firm view that there is an unnecessary,ineffective and costly duplication of workbetween the Board and the Commission forthe Promotion and Protection of the Rightsof Cultural, Religious and LinguisticCommunities, and between the Board andthe Department of Arts and Culture on lan-guage development needs. It is thereforerecommended that the Lexicography Unitsof the Board be transferred to theDepartment of Arts and Culture and that theBoard be incorporated into the Commissionfor the Promotion and Protection of theRights of Cultural, Religious and LinguisticCommunities as a joint activity.

b) The Committee is aware of the fact that boththe Board and the Commission are constitu-tional bodies and that it might not be possi-ble to amend the Constitution in the nearfuture. The Committee is nevertheless ofthe opinion that the consolidation of the twobodies as a joint activity should and can beachieved in a relatively short period. Legaladvice obtained by the Committee suggeststhat the location of the Board as a joint


C H A P T E R 9

activity within the Commission can beachieved without necessarily amending theConstitution. The motivation for such amove can be summarised as follows:

c) The Board is a creature of the Constitutionand has a constitutional duty to fulfil itsfunctions in accordance with section 6(5).However, the Constitution does not stipulatein what manner or form the Board must ful-fil these constitutional obligations. TheConstitution furthermore does not requirethat the Board act independently, nor does itguarantee its sovereignty. Instead,Parliament is accorded the discretionthrough legislation to provide for an institu-tion that would fulfil these functions. Itwould therefore be constitutionally tenable– but not ideal in the long term – forParliament to adopt legislation that wouldcombine the Board with the Commission ifcertain conditions are met: -

i. The envisaged legislation will have toensure that the mandate of the newbody encompasses the duties accordedto the existing Board in the Constitutionminus the functions transferred to theDepartment of Arts and Culture. Such anew body must therefore be given amandate to promote and create condi-tions for the development and sustain-ability of all official languages as well asthe Khoi, Nama and San languages andsign language, and a mandate to pro-mote and ensure respect for other listedlanguages.

ii. The legislation must take cognisance ofthe fact that the independence andimpartiality of the Commission is guaran-teed in the Constitution. This means thatthe existing legislative arrangement,which does not allow the Board sufficientindependence from the Minister and the

Department, may not be replicated in thenew legislation. The legislation must alsoprovide for a mandate for the new bodythat accords with the mandate of theCommission in the Constitution.

iii The Constitution provides for the appoint-ment of Commissioners to theCommission to be regulated by legisla-tion and does not prescribe a specificappointments procedure. New legislationcan thus provide for the appointment ofa new body of Commissioners capable offulfilling the mandate of both bodies.The requirement in the Constitution thatsuch a body must be broadly representa-tive of the main cultural, religious andlinguistic communities in South Africa isalready mirrored in the Pan South AfricanLanguage Board Act, which suggests thatthe joining of the two could be done rel-atively speedily.

d) The Committee is of the view that it isimperative that members of the two institu-tions should work together to ensure asmooth transition to joint activity. At thesame time such a transition would requireamendment of legislation. The Committeetherefore recommends that each of the bod-ies nominate three members to form a taskteam with six members of the NationalAssembly (preferably members of thePortfolio Committee on Arts and Culture)nominated by the Speaker in proportion tothe various parties’ electoral strength to dealwith the practical implementation of theproposal. The task team should be requiredto report to the National Assembly withinone year of the adoption of this report witha practical plan for implementing this pro-posal. Such a report should also containdraft legislation ready for submission to thePortfolio Committee on Arts and Culture.



C H A P T E R 9

CHAPTER 10

1. Background

The negotiators of South Africa’s 1993Constitution were confronted with a stark choiceabout the way in which human rights would beprotected in a new democratic order. Wouldsuch a Constitution protect the rights of cultural,linguistic or other groups, or would it protectindividuals to choose for themselves whomthey wished to associate with and how theywished to live their lives? The negotiators deci-sively rejected the first option and chose,instead, to inscribe a justiciable Bill of Rightswith a list of individual rights into theConstitution. Instead of protecting group rights,the Bill of Rights protects the right of individualswho have a strong association with a particularcultural, linguistic or other community, to asso-ciate freely with the community of their choice.Thus the Bill of Rights shows respect for SouthAfrica’s cultural and linguistic diversity withoutperpetuating apartheid-style group classifica-tions based on language, culture or religion.

However, the negotiators of the 1996Constitution agreed to address further concernsof cultural, linguistic and religious minorities bycreating the Commission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities to help promoterespect for the rights of such. According to aHuman Sciences Research Council Report enti-tled “Overcoming the Legacy of Discriminationin South Africa”, pressure for the creation of theCommission came mainly from groups whowished to ensure the continued recognition andsupport for the Afrikaans language and culturein a democratic South Africa. However, giventhe diverse nature of South African society, theConstitution created a Commission that woulddeal with the important issue of the promotionand protection of the rights of all cultural, lin-guistic and religious communities.

The Commission was identified in Chapter 9 ofthe Constitution and given constitutional pro-tection as one of the institutions strengtheningconstitutional democracy. In the negotiationsthe Constitutional Assembly was bound by theconstitutional principles. The ConstitutionalAssembly agreed that the establishment of theCommission would give proper expression toconstitutional principles XI and XII relating toencouragement of diversity of language andculture and the protection and recognition ofcollective rights of self-determination in form-ing and joining organs of civil society includinglinguistic, cultural and religious associations.

Despite agreement in 1996 on the provisionscreating the Commission, it took six yearsbefore Parliament adopted the requisite legisla-tion to set up the Commission and it onlybecame fully operational in 2004. Given theshort lifespan of the Commission, theCommittee finds that it was difficult to deter-mine to what extent the Commission has ful-filled its mandate. This must be kept in mindwhen reading the Committee’s findings in thischapter.


Section 185 of the Constitution states that theprimary objects of the Commission are three-fold. Firstly, it must promote respect for cultur-al, religious and linguistic communities.Secondly, it must promote and develop peace,friendship, humanity, tolerance and nationalunity among cultural, religious and linguisticcommunities on the basis of equality, non-dis-crimination and free association. Thirdly, itmust recommend the establishment or recogni-tion of cultural councils for communities in

133THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES

CHAPTER 10

THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES

C H A P T E R 1 0

South Africa. The section also states that legis-lation must provide the Commission with thepower necessary to achieve these objectivesand should include the power to monitor,investigate, research, educate, lobby, adviseand report on issues concerning the rights ofcultural, religious and linguistic communities.

The Commission for the Promotion andProtection of the Rights of Cultural, Religiousand Linguistic Communities Act 19 of 2002states that, apart from the objects listed in theConstitution, the Commission also has theobject of fostering mutual respect among cul-tural, religious and linguistic communities andpromoting the right of communities to developtheir historically diminished heritage.

To achieve these goals, the Act contains the fol-lowing powers and functions of theCommission:

a) To conduct information and education pro-grammes to promote public understandingof the objects, role and activities of theCommission;

b) To conduct programmes to promote respectfor, and further the protection of, the rightsof cultural, religious and linguistic communi-ties;

c) To assist in the development of strategiesthat facilitate the full and active participationof cultural, religious and linguistic communi-ties in nation-building in South Africa;

d) To promote awareness among the youth ofSouth Africa of the diversity of cultural, reli-gious and linguistic communities and theirrights;

e) To monitor, investigate and research any

issue concerning the rights of cultural, reli-gious and linguistic communities. Whenconducting an investigation the Commissionhas the power to summon witnesses, whohave a legal duty to produce all relevantdocumentation;

f) To educate, lobby, advise and report on anyissue concerning the rights of cultural, reli-gious and linguistic communities;

g) To facilitate the resolution of frictionbetween and within cultural, religious andlinguistic communities or between any suchcommunity and an organ of state where thecultural, religious or linguistic rights of acommunity are affected;

h) To receive and deal with requests related tothe rights of cultural, religious and linguisticcommunities; and

i) To make recommendations to the appropri-ate organ of state regarding legislation thatimpacts, or may impact, on the rights of cul-tural, religious and linguistic communities.

The Act also provides for the powers and dutiesof the Commission in the creation and recogni-tion of community councils. The Commission isgiven the power to recognise community coun-cils created by communities themselves or fos-tered by the Commission where communitiesare not organised already. The Act states thatthe aims of a community council recognised bythe Commission should be to preserve, pro-mote and develop the culture, religion or lan-guage of the community for which it is recog-nised or advise the Commission on, and assistthe Commission in, matters concerning theachievement of the objects of the Commission.

The Constitution further states that the


Commission may report any matter that fallswithin its functions or powers to the SouthAfrican Human Rights Commission for investi-gation.

3. Findings

The Commission responded to the question-naire circulated by the Committee. Theresponse formed the basis of the Committee’smeeting with the Commission on 16 February2007. The Commission provided theCommittee with supplementary information atthe request of the Committee. Following con-sideration of all the information at its disposal,the Committee finds as follows:


a) The Committee notes that the Commissionhad not settled yet on what exactly consti-tuted a cultural, religious or linguistic com-munity – despite the fact that it was themain task of the Commission to promoterespect for the rights of such communities.The Committee also notes that theCommission often used the words “commu-nity” and “group” interchangeably both in itswritten and oral submissions. TheCommittee finds this disturbing and perplex-ing. It does not seem to bode well for theeffectiveness and relevance of a bodycharged with protecting and promoting therights of communities, if that body has notdetermined what the nature of the commu-nities are that they are supposed to protect.The Committee therefore recommends thatthe Commission engage further with thisissue with a view to producing a workabledefinition of communities.

b) As set out above, the Commission has the

power to initiate the establishment of com-munity councils and can also recognise com-munity councils. However, the Commissionwas not able to provide the Committee withthe set of criteria the Commission uses forthe recognition of such communities. TheCommittee is of the view that theCommission should devise a policy on therecognition of community councils takinginto account the Bill of Rights.

c) The Committee notes that there is a tensionbetween the two potentially contradictoryroles envisaged for the Commission by theConstitution and the legislation. On the onehand the Commission is mandated to pro-mote the protection of authentic cultural,religious and linguistic identities. On theother hand, it is also mandated to promotenational unity, friendship and peace. TheCommittee notes that the Commissionbelieves that there is no real contradictionbetween these two goals. The Commissionargues that by providing the space withinwhich communities can thrive, it is helpingto build tolerance, understanding and peacebetween different communities. TheCommittee believes that the aim of cultivat-ing respect for community diversity is laud-able and that this may well be the best wayfor the Commission to deal with what other-wise would appear to be a contradiction inits mandate.

d) The Committee is concerned that while theCommission has the power to deal withcomplaints, it has only received 25 com-plaints since its inception.

e) The Committee further notes with concernthat the Commission complained that it didnot have the power to investigate com-plaints fully because section 185(3) of the


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Constitution and the concomitant section ofthe legislation requires it to report any mat-ter that falls within its powers and functionsto the South African Human RightsCommission. The Commission is clearly mis-understanding its powers in this regard as itis not required (Committee’s emphasis) torefer a matter to the Human RightsCommission, but is merely permitted to doso if it sees fit. There is, therefore, no legalimpediment to the Commission investigat-ing complaints about the breach of the cul-tural, religious or linguistic rights of individ-uals protected in the Bill of Rights.

f) The Committee is of the view that legitimateminority concerns should primarily be dealtwith in a human rights context. However,the Committee feels that the Human RightsCommission has already established proce-dures for the adequate investigation of com-plaints. The Human Rights Commission doesthis relatively speedily.

g) The Commission is concerned that it was“not a party in the Promotion of Equality andPrevention of Unfair Discrimination Act 4 of2000” and argued that there was a need forit to be involved in Equality Court work toensure that Equality Courts balanced individ-ual rights and community rights. TheCommittee finds that this submission funda-mentally misconstrues the nature of itsmandate and of the provisions of the Act.As the Constitution provides for the protec-tion of the rights of members of cultural,religious and linguistic communities as indi-vidual human rights, there is no need to“balance” the rights of communities againstthe rights of individuals. The Bill of Rightsguarantees individual rights, including therights of individuals to freely associate withcommunities.

h) In effectively pursuing its constitutionalmandate, the Commission therefore has aduty to assist individuals who complain thatthey have been discriminated againstbecause they belong to a particular cultural,religious or linguistic community. The Actprovides for any body – including theCommission – to approach an Equality Courtwith such a complaint on behalf of any per-son or group of people. The Committee rec-ommends that the Commission familiarizeitself with the provisions of the Act andmake every attempt to take relevant com-plaints of the public to the Equality Court onbehalf of aggrieved individuals.

i) The Commission has the power to reviewlegislation that may impact on the rights ofcultural, religious and linguistic communitiesand to make recommendations to theappropriate authority for changes to suchlegislation. The Committee notes that theCommission has not yet done so.


a) The Act provides for the appointment of nofewer than 11 and no more than 17Commissioners who, in turn, must appoint aChief Executive Officer responsible for theformation and development of an efficientadministration. The Commission functionswith an executive committee, but all impor-tant decisions must be taken by the plenaryconsisting of all Commissioners. Only theChairperson of the Commission serves in afull-time capacity.

b) The Commission informed the Committeethat there are no clearly defined roles forCommissioners and that there has been ten-sion between Commissioners and the secre-


tariat. This tension stems mostly from thelack of clarity on the role of part-timeCommissioners in relation to the secretariat,particularly regarding the implementation ofthe decisions of the Commission. TheCommittee notes with concern that afterfour years of existence this obvious confu-sion about roles has not been addressed andthat Commissioners seem not to realise thatthey have the power and the duty to fix thisproblem themselves. The Committee there-fore recommends that the Commissionaddress this problem forthwith.

c) Section 15 of the Act states that everymember of the Commission has a duty todisclose to the Commission any personal orprivate business interests which that mem-ber or that member’s spouse, partner orclose family member may have in any mat-ter before the Commission, and must with-draw from the proceedings of theCommission when that matter is considered,unless the Commission decides that themember’s interest in the matter is trivial orirrelevant. The Act also prohibits aCommissioner from using his or her positionor privileges for private gain or to benefitanother.

d) The Commission informed the Committeethat all members of the Commission havedeclared their interests. The Commissionhowever admitted that this declaration hasnot been updated for 2007. The Committeewas also informed that the Chief ExecutiveOfficer and all senior employees have beenrequested to submit information about theirfinancial and other interests to theCommission in line with the Public FinanceManagement Act. However, the 2005/06report of the Auditor-General on financialstatements of the Commission reveals that

senior officials had not declared their inter-ests, contrary to good corporate governance.The Committee is of the view that both theCommissioners and the senior officialsshould declare their interests annually inline with the recommendations made inChapter 2 of this report.

e) The Commission submitted that it hasapproved a Code of Conduct dealing withtransgressions by, and conflicts between,Commissioners. Staff relations are informedby the Public Service Handbook for SeniorManagement.


a) The Commission has a public education andadvocacy unit whose function it is to con-duct information and education programmesto promote public understanding of theCommission’s objects, role and activities. TheCommission was only launched in 2004, andneeded to conduct extensive promotionalwork to establish a public profile. In thatregard a national consultative conferencewas held, and the media campaign thataccompanied the conference assisted inmaking the public aware of the conferenceand its objects.

b) During 2004/05 the Commission received16 complaints and during 2005/06 itreceived 29 complaints. Complaints aboutreligion headed the list, followed by com-plaints about culture and language. Mostcomplaints about culture were from ruralareas, while most complaints about lan-guage were from urban areas. There is aconcentration of complaints in the Gautengprovince. The Commission has handledcomplaints from only three other provinces.


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c) The Committee is concerned about the smallnumber of complaints lodged with theCommission as this suggests either that thepublic is unaware of the work done by theCommission, or that it has no confidencethat the Commission will be able to addressits concerns. The Committee therefore rec-ommends that the Commission take pro-active steps to improve its profile by,amongst others taking relevant cases to theEquality Courts.

d) The analysis of the complaints shows that bythe time the 2005/06 annual report waspublished in 2006, none of the complaintsreceived during the 2004/05 financial yearhad been concluded. While only three ofthe 29 complaints received during 2005/06were settled satisfactorily, 26 of the com-plaints were scheduled for considerationand investigation in 2007. The Committee isconcerned at the slow pace of investigationof the complaints.

e) The Commission informed the Committeethat it did not have an established procedurefor the public to complain about its investi-gations. The Chairperson and the ChiefExecutive Officer receive such complaints.The submission by the Commission did notprovide the number of complaints that theChairperson or the Chief Executive Officerhad received from the public.

3.4. APPOINTMENTS

a) The National Assembly is not involved in theappointment process for Commissioners.The Act provides that, whenever vacanciesneed to be filled, the Minister for Provincialand Local Government must invite individu-als and organisations to nominate suitablyqualified individuals to serve on the

Commission. The Minister must also appointa selection panel consisting of persons whocommand public respect for their fair-mind-edness, wisdom and understanding of issuesconcerning South African cultural, religiousand linguistic communities. The panel mustsubmit to the President a list of names of atleast one-and-a-half times the number ofvacancies to be filled. This list of nomineesmust be broadly representative of the maincultural, religious and linguistic communitiesand must also broadly reflect the gendercomposition of South Africa. The Presidentthen selects the requisite number ofCommissioners from the list of nomineesand appoints them.

b) The Act provides for the President to appointthe Chairperson and no fewer than 11 and nomore than 17 other Commissioners. ThePresident may appoint a deputy chairpersonfrom the ranks of the Commissioners. ThePresident determines the number ofCommissioners to be appointed. The Presidentmay reduce the number of Commissionersonly when appointing Commissioners for anew term. The Committee is of the view thatthe Commission is too big. The size of theCommission contributes to the confusion aboutthe role of the Commissioners and seemswasteful and expensive. The Committee there-fore recommends that the number ofCommissioners should not exceed 11.

c) It is unclear why the Minister for Provincialand Local Government should play such acentral role in the appointment ofCommissioners. The role of the Minister inthis process may impact negatively on theindependence of the Commission, which isguaranteed in section 181 of theConstitution. While the role and function ofthe Commission does not require the high-


est protection from Executive influence tosafeguard its independence, the involve-ment of the Minister may well create theimpression in the minds of the public thatthe Commission is not independent.

d) The Committee therefore recommends thatthe Commission be appointed by thePresident on the recommendation of theNational Assembly. In line with the recom-mendations in Chapter 2, the Committeerecommends that the relevant portfoliocommittee should invite nominations, drawup a short-list and interview the candidatesbefore recommending a list of names to theNational Assembly for approval.


a) The Commission does not have any formalrelationship with the Executive. It interactswith relevant members of the Executive onan ad hoc basis. However, the Executivecurrently plays a decisive role in theappointment of the Commissioners. Aspointed out above, this might impact nega-tively on public perceptions about the inde-pendence of the Commission and the proce-dure for appointment should be changed toensure that the National Assembly and notthe Minister or the President plays the deci-sive role in the appointment of Commission-ers.

b) The Committee notes that the member ofthe Executive formally designated to dealwith the affairs of the Commission is theMinister for Provincial and Local Govern-ment. It is unclear why the Commission isrequired to deal with this Minister who doesnot seem to have a specific link with thework done by the Commission. The mandateof the Commission, properly understood,

requires it to promote and protect the rightsof individuals who belong to particular cul-tural, religious or linguistic communities. Thepromotion and protection of rights associat-ed with the work of the Commission is theproper ambit of the Portfolio Committee onArts and Culture. The Committee thereforerecommends that the Minister of Arts andCulture should be designated as the memberof the Executive dealing with theCommission.


a) In terms of section 181 of the Constitutionthe Commission is accountable to theNational Assembly. At present the Commis-sion reports to the Portfolio Committee onProvincial and Local Government. TheCommission has expressed dissatisfactionwith this arrangement and has indicatedthat the work done by the Commission doesnot relate to the interests and expertise ofthe members of the Portfolio Committee onProvincial and Local Government. TheCommittee agrees with the Commission.For the reasons provided in the previousparagraph, the Committee is of the viewthat the Commission should rather report tothe Portfolio Committee on Arts and Culture.

b) The Commission has expressed some frus-tration with the lack of interaction with theNational Assembly. Although the Commis-sion submits its reports to the NationalAssembly and appears before the relevantPortfolio Committee once a year, there is noproper feedback from the Assembly. TheCommittee is of the view that the proposalson parliamentary oversight in Chapter 2 ofthis report will address most of the concernsof the Commission.


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3.7. RELATIONSHIP WITH CHAPTER NINEAND ASSOCIATED INSTITUTIONS

a) The Act allows the Commission to makeappropriate arrangements with another con-stitutional institution or an organ of state toassist the Commission in the performance ofany of its functions. The Act also requiresthe Commission to co-operate with otherconstitutional institutions and organs ofstate where the functions of the Commissionoverlap with those of such other constitu-tional institutions or organs of state. Asmentioned above, the Commission may alsoreport any matter that falls within its func-tions and powers to the South AfricanHuman Rights Commission for investigation.

b) The Committee was informed that there wassome informal co-operation between theCommission and other Chapter 9 bodiesthrough membership of the Forum ofChairpersons and Deputy Chairpersons ofChapter 9 Institutions. Recently, the ChiefExecutive Officers of these institutions havealso organised themselves into a forum thatshares information on programmes andchallenges they experience in their institu-tions. The Commission pointed out that,because of these interactive initiatives, adhoc collaboration has resulted, including aco-hosting of human rights day activitieswith the Human Rights Commission, andthere has been fruitful collaboration on afew programmes. However, the Committeenotes with concern that the Commission hasno formal co-operation agreement with anyof the other Chapter 9 institutions or withthe Pan South African Language Board,despite the fact that there are clear areas ofoverlap of functions.

c) The Commission attempted to draw a dis-

tinction between the work done by the PanSouth African Language Board to promotemultilingualism and its work to promote therights of linguistic minorities. It argued thatit did not have to work with the Pan SouthAfrican Language Board because the func-tions of these two bodies did not overlap inany material way. The Committee is of theopinion that the differences in the functionsof these two institutions are less pro-nounced than the Commission suggests.Both bodies have the power to deal withcomplaints where individual members oflinguistic communities feel aggrieved aboutrespect for their language and both have aconstitutional duty to promote and protectthe right of individuals to have their lan-guages respected.

d) However, the Committee notes with concernthat despite this overlap, no formal co-oper-ation agreement has been reached with thePan South African Language Board. Anagreement with the Board was concludedbut it has not been signed. The Committeehas been informed that these two bodieshave also not formalised their working rela-tionship in any other way, but do co-operatein an informal manner. The Committeereceived submissions from civil societypointing out this overlap and the lack of for-mal co-operation between these bodies andsuggesting that steps should be taken toaddress this matter.

e) The Committee is of the view that theabsence of such an agreement leads to dupli-cation and renders both institutions lesseffective than they would otherwise havebeen. The duplication of mandates also hasserious cost implications. The Committeetherefore recommends that the Board beincorporated within the Commission and that


a new institution, the “Commission for thePromotion and Protection of the Rights ofCultural, Religious and Linguistic Communities(including the Pan South African LanguageBoard)”, be created to face the importantchallenges of especially the promotion ofindigenous languages in South Africa. Thisproposal is further addressed below.

f) The Commission also submitted that it refersmatters falling outside of its mandate toother institutions as mandated by the Act,but it failed to mention how many suchmatters were referred. The Committeenotes with concern that no systems are inplace to provide statistics about such casesand to follow up on referrals and recom-mends that such systems be developed andput in place forthwith.

g) In its submission the Commission seemed tolament the legislative provision that it mayreport matters falling under its functions andpowers to the Human Rights Commission forlitigation. The Committee is of the view thatthe Commission should have been activelypromoting collaboration especially in matterspertaining to equality, given its stated desire,and its mistaken belief, that it has no role toplay in terms of the equality legislation.


a) The first budget allocation of theCommission was determined by theDepartment of Provincial and LocalGovernment in 2003/04 and had no directrelation to strategic plans as the institutionhad not yet been established. TheCommission informed the Committee that ithas begun to engage with the NationalTreasury when dealing with the budgetprocess, and that the money is still allocated

to it via the Budget Vote of the Departmentof Provincial and Local Government. TheCommission was concerned about theinvolvement of the Executive and proposedthat the budget should be dealt with by theNational Assembly. The recommendationsin this regard in Chapter 2 of this report dealwith this problem and the Committeebelieves that these will allay the concerns ofthe Commission.

b) The Commission received R8.9 million inappropriations from government in the2003/04 financial year, which was lateradjusted to R7.9 million. At that stage theCommission was not fully functional andwas still housed in the Department ofProvincial and Local Government. The budg-et for the Commission has grown steadilysince then and for the current financial yearthe budget is R13.4 million. The table belowprovides a breakdown of income and expen-diture, as well as the amounts allocated interms of the Medium Term ExpenditureFramework.

c) The Commission’s principal source of incomeis a transfer from the National Treasury, andis appropriated in the Vote of theDepartment of Provincial and LocalGovernment. Expenditure has increasedsubstantially from the first year of operation,suggesting that the institution did not domuch in the first year of operation, but start-ed doing work in the 2004/05 financial year.

d) The Committee is surprised at the largeincreases in the Commission’s budget in termsof the medium Term Expenditure Framework.From the Committee’s interaction with theCommission it was unclear whether thismoney would be spent in an effective man-ner. The Committee was informed that the


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Commission planned to open provincial officesand that some of the money would gotowards this. As the Committee has pointedout in Chapter 2, it is of the opinion that theopening of provincial offices is seldom themost effective way for a Chapter 9 institutionto spend its limited resources. The Committeetherefore recommends that a moratorium beplaced on the opening of further provincialoffices at least until the Commission has for-malised its relationship with the Pan SouthAfrican Language Board.

Table 1: Income and Expenditure 2003/3004– 2009/2010

30

g) The Commission submitted that its currentstaff complement was 15, and that there are46 vacancies that needed to be filled in2007. Although the Commission is in itsinfancy, the Committee is of the view thatthe small staff complement hinders theCommission’s work. The slow pace of com-pleting investigations attests to this. It cre-ates the impression that the Commission isoverwhelmed. The staff complement at theend of 2006 showed that there was oneresearcher for religion, culture and dimin-ished identity.


30 National Treasury (2007), Estimates of National Expenditure and Commission’s submission to the Committee

R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Income 7960 9 718 11 586 13 403 15 447 18 496 20 393

Expenditure 1 280 12 471 11 427

Surplus/(Deficit) 6 680 (2 753) 159

e) The largest items on the financial statementof the Commission are the salaries at R3.7million and consultancy fees at R1,2 millionduring the 2005/06 financial year. With thesmall staff complement, it appears that theCommission was dependent on consultantsand other service providers for the provisionof research and other services. It appearsthat the allocations were just sufficient tokeep the office running and acquire equip-ment.

f) There was overspending in both the2004/05 and 2005/06 financial years.Although the overspending could beexplained by the costs of setting up a newinstitution, the Commission did not explainthe overspending.


The Committee draws the following generalconclusions in addressing the specific matterscontained in its terms of reference:

a) While the current and intended constitution-al and legal mandates of the Commission arestill suitable for the South Africa of today, theduration of the existence of the Commissionmakes it difficult for the Committee to drawabsolute conclusions regarding its contribu-tion to democracy.

b) Reorganisation of the Commission in linewith the recommendations made in theChapter dealing with the Pan South AfricanLanguage Board will enhance the work ofthe Commission and avoid duplication.

c) The appointments procedure for theCommission requires revision. TheCommittee makes general recommenda-tions in this regard in Chapter 2 of thisreport.

d) Institutional governance arrangements ofthe Commission should be revised. Thisincludes establishing clear lines of accounta-bility and an appropriate system for disclo-sure of interests.

e) The relationship between the Commissionand the National Assembly, through thePortfolio Committee on Arts and Culture, isunsatisfactory. The Committee makes gen-eral recommendations in this regard inChapter 2 of this report.

f) Funding of the Commission appears to beadequate. The budget process arrange-ments, however, require amendment toassert further the independence of theCommission. The Committee makes gener-al recommendations in this regard inChapter 2 of this report.

5. Recommendations

a) As pointed out above, the Committee is ofthe firm view that there is an unnecessary,ineffective and costly duplication of workbetween the Commission and the Pan SouthAfrican Language Board. It is therefore rec-ommended that the Pan South AfricanLanguage Board be incorporated into theCommission.

b) The Committee is aware of the fact that boththe Commission and the Board are estab-lished by the Constitution and that it mightnot be possible to change the Constitution inthe near future. The Committee is neverthe-

less of the opinion that the joining of thetwo bodies should and can be achieved in arelatively short period. The Committee is ofthe view that speedy action could turn thesituation around. The Committee obtainedlegal advice, and is informed that the twobodies can be joined without necessarilychanging the Constitution. The motivationfor such a move can be summarized as fol-lows:

i. The Board is a creature of theConstitution and has a constitutional dutyto fulfil its functions in accordance withsection 6(5) of the Constitution. How-ever, the Constitution does not stipulatein what manner or form the Board mustfulfil these constitutional obligations. TheConstitution furthermore does not requirethat the Board act independently, nordoes it guarantee its sovereignty. Instead,Parliament is accorded the discretionthrough legislation to provide for an insti-tution that would fulfil these functions. Itwould therefore be constitutionally ten-able, although not ideal in the long term,for Parliament to adopt legislation thatwould incorporate the Board into theCommission if certain conditions weremet.

ii. As set out in the Chapter on the PanSouth African Language Board, the envis-aged legislation will have to ensure thatthe mandate of the new body encom-pass the duties accorded to the existingBoard.

iii. The amalgamating legislation must takecognisance of the fact that the independ-ence and impartiality of the Commissionis guaranteed in the Constitution. Thismeans that the new legislation should


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not only provide for a mandate for thenew body that would accord with themandates of both the Commission andthe Board, but should also ensure thatthe Commission’s independence is notaffected.

iv. The Constitution provides for the appoint-ment of Commissioners to theCommission to be regulated by legisla-tion and does not prescribe a specificappointments procedure. Amalgamatinglegislation can thus provide for theappointment of a new body ofCommissioners capable of fulfilling theamalgamated mandate of the two bod-ies. The requirement in the Constitutionthat such a body must be broadly repre-sentative of the main cultural, religiousand linguistic communities in SouthAfrica is already mirrored in the PanSouth African Language Board Act, whichsuggests that the amalgamation could bedone relatively speedily. As set outabove, the current system of appoint-ments does not accord fully with therequirements of independence andshould be changed to allow the NationalAssembly to nominate Commissioners forappointment in line with the recommen-dations in Chapter 2 of this report.

v. The Committee is of the view that it isimperative that members of the twoinstitutions work together to ensure asmooth amalgamation process. At thesame time, such a process would requireamendment of legislation. We thereforerecommend that each of the bodiesnominate three members who will forma task team together with six membersof the National Assembly (preferablymembers of the Portfolio Committee onArts and Culture) nominated by theSpeaker in proportion to the various par-ties’ electoral strength to deal with thepractical implementation of the proposal.The task team should report to theNational Assembly within one year of theadoption of this report with a practicalplan for implementing the proposal.Such a report should also contain draftlegislation ready for submission to thePortfolio Committee on Arts and Culture.

vi. The Committee is of the view that, as dis-cussed in Chapter 2 of this report, in thelong term the Commission should beamalgamated with the South AfricanHuman Rights Commission, therebyaddressing the Committee’s central rec-ommendation of a single Human RightsCommission for all rights issues as dis-cussed in Chapter 2 of this report.



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CHAPTER 11

1. Background

South African women are subject to deeplyentrenched and overlapping forms of oppres-sion, with a result that they suffer unfair dis-crimination in almost every aspect of humanendeavour. While much has been done sincethe advent of democracy to address structuralgender inequalities, discrimination on thegrounds of gender remains a reality for manySouth African women. Their plight is aggravat-ed further by such factors as race, sexual orien-tation, rural origins and indigence. South Africaremains a society with strong patriarchal ten-dencies in which women are expected to fulfilinferior, gender-based roles.

It was, therefore, hardly surprising that at thetime of the drafting of both the 1993 and 1996Constitutions, women and other gender activistsexpressed concern that the unique and pressinghuman rights based needs of women would besubsumed in and sublimated by the largerstruggle for the establishment of a human rightsculture in the country. Agreement emergedabout the critical need to establish a separatebody to deal with the distinctive needs ofwomen in South Africa, and to prevent the mar-ginalisation of those concerns most closelyassociated with the lives of women.

The 1993 Constitution accordingly created anindependent Commission for Gender Equality todeal specifically with the promotion of genderequality and to advise and make recommenda-tions relating to gender equality and the statusof women. Legislation to establish theCommission was finally enacted by Parliamentin June 1996 and the Commission on GenderEquality Act 39 of 1996 came into operation on8 August 1996.

The discussion around the 1996 Constitution

reaffirmed the constitutional basis of theCommission. Section 181 read with section 187establishes such a Commission.

One of the issues that arose in the discussionconcerned the relationship between theCommission and the national gender machin-ery aimed at advancing the needs of SouthAfrican women. While many countries hadestablished gender machineries as a singlestructure in the form of women’s ministries, theconcern was expressed that such an arrange-ment would serve to marginalise women’sissues in South Africa. Instead, a collection ofinterrelated institutions was proposed situatedboth within and outside of government. Thesewere to operate at national, provincial, region-al and local level. The Commission for GenderEquality formed part of the national gendermachinery and was to function within this inte-grated set of institutions. In addition, the adop-tion of a ’gender mainstreaming’ approach thatintegrated gender concerns into all aspects ofgovernance was agreed upon. However, as theConstitution specifically establishes theCommission as an independent body, the con-stitutional basis for the Commission’s role with-in the national gender machinery is unclear.

Although, the decision was to establish a sepa-rate and distinct Commission for GenderEquality, there was, nevertheless, awarenessthat there might be duplication in the roles ofthe Commission and other bodies, such as theHuman Rights Commission and the PublicProtector. However, the historical oppression ofwomen in a starkly patriarchal society weighedheavily in the decision to establish theCommission for Gender Equality as its establish-ment meant increased public participation toinfluence government policy and promisedgreater horizontal accountability of the state toachieve substantive gender equality.

147THE COMMISSION FOR GENDER EQUALITY

CHAPTER 11

THE COMMISSION FOR GENDER EQUALITY

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The Commission has a broad mandate toachieve gender equality in South Africa. Thelegal mandate of the Commission is derivedfrom the Constitution, and such other legisla-tion as the Commission on Gender Equality Act39 of 1996 and the Promotion of Equality andPrevention of Unfair Discrimination Act 4 of2000.

2.1. CONSTITUTIONAL MANDATE

Section 119 of the 1993 Constitution providedfor the establishment of a Commission forGender Equality ’to promote gender equalityand to advise and to make recommendations toParliament or any other legislature with regardto any laws or proposed legislation whichaffects gender equality and the status ofwomen’. Section 120 stated that legislationwould provide for the composition, powers,functions and functioning of the Commissionand for all related r matters.

The 1996 Constitution affirms the existence ofthe Commission and provides in greater detailfor the Commission’s powers and functions.

Section 187 of the 1996 Constitution states thatthe Commission must promote respect for gen-der equality and the protection, developmentand attainment of gender equality. It alsoaffirms that the Commission must have thepower, as regulated by legislation, necessary toperform its functions, including the power tomonitor, investigate, research, educate, lobby,advise and report on issues concerning genderequality. These powers and functions are fullydetailed in the Commission on Gender EqualityAct.

2.2. MANDATE IN TERMS OFCOMMISSION ON GENDER EQUALITYACT

In common with other institutions, in terms ofsection 181 of the Constitution the Commissionis independent. More specifically with regard tothe Commission, the Commission on GenderEquality Act affirms the independence of theCommission and requires Commissioners toperform their duties without fear, favour orprejudice. The Act also prohibits any organ ofstate or person from interfering with, hinderingor obstructing the Commission in the exerciseof its duties. The legislation requires that allorgans of state afford the Commission theassistance it reasonably requires to protect itsindependence, impartiality and dignity.

The Commission’s functions can be groupedinto five broad categories, namely monitoringand evaluation, investigations, education andinformation, research, and liaison. The Act pro-vides the Commission with wide powers to ful-fil its functions.

Firstly, the Act requires the Commission tomonitor and evaluate the practices of organs ofstate at any level; statutory bodies or func-tionaries; public bodies and authorities; andeven private businesses, enterprises and insti-tutions, in order to promote gender equality.The Commission is also authorised to make anyrecommendations to Parliament or any otherlegislature that it considers fit in response to itsmonitoring activities.

Secondly, the Commission has a legal duty toprepare and carry out information and educa-tion programmes to foster public understandingof gender equality and of the Commission’srole.


Thirdly, the Commission is tasked with theimportant duty of reviewing laws and policieslikely to affect gender equality and the status ofwomen. These include Acts of Parliament; anysystem of personal and family law or custom;any system of indigenous law, customs or prac-tices; and any other existing law or draft legis-lation. The Act also empowers the Commissionto make recommendations to Parliament orother relevant legislatures about necessaryamendments to the law and the adoption ofnew legislation.

Fourthly, the Commission has a duty to investi-gate any gender-related issues of its own accordor on receipt of a complaint. When investigat-ing such a complaint, it is required to try andresolve the dispute or to rectify the act or omis-sion complained of, through mediation, concilia-tion or negotiation. The Commission also hasthe power, at any time during the process, torefer the matter to the Human RightsCommission, the Public Protector or any otherrelevant authority. The Commission has widepowers of search and seizure and can subpoenaany witnesses when investigating complaints inorder to gather the necessary information. Thismeans that, unlike civil society organisations,the Commission (subject always to appropriateprocedures) has the power not only to compelthe provision of evidence from any public or pri-vate body, but also the attendance of witnessesfor purposes of an investigation.

31

It is the view of the Committee that section 38of the Constitution, which allows anyone toapproach a competent court to enforce a rightfound in the Bill of Rights, additionally empow-ers the Commission to take a case to court onbehalf of a complainant.

In the fifth instance, the Commission has theduty to monitor South Africa’s compliance with

international agreements adopted by the staterelating to the objects of the Commission. Thereare very important international conventions atissue on matters of race, women and children,and human rights in general.

Finally, the Commission must, as far as is practi-cable, maintain close liaison with institutions,bodies or authorities with similar objectives tothose of the Commission, in order to foster com-mon policies and practices and to promote co-operation where appropriate. The Commissionmust also liaise and interact with any organisa-tion that actively promotes gender equality.

2.3. MANDATE IN TERMS OF PROMOTIONOF EQUALITY AND PREVENTION OFUNFAIR DISCRIMINATION ACT

Although significant progress has been made intransforming our society and its institutions,structural gender inequalities remain deeplyembedded in social relations, practices and atti-tudes in South Africa. These inequalities invari-ably lead to unfair discrimination on the basisof sex and gender and frustrate the achieve-ment of the society promised by theConstitution. To address this problem in a sys-tematic, consistent and fair manner, thePromotion of Equality and Prevention of UnfairDiscrimination Act 4 of 2000 was enacted inorder to carry out the provisions of theConstitution.

The Act is intended to provide an easiermethod for ordinary people to challenge unfairdiscrimination by the state, or by private insti-tutions or individuals, through the creation of asystem of equality courts. It envisages animportant role for the Commission for GenderEquality in the successful implementation andfunctioning of the provisions of the Act.


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31 Civil Society Advocacy Programme (CSAP). Organisational and institutional assessment of the South African Commission for Gender Equality. Final Report, October 2006. p.40

Firstly, section 20 of the Act allows theCommission to institute proceedings under theAct in an equality court on behalf of anyaggrieved person or group. In addition, wherea presiding officer of such a court decides torefer a matter to the Commission, it must dealwith it speedily. The Act also places a duty onthe Commission to assist complainants whowish to lodge a complaint and to conductinvestigations where necessary.

Secondly, the Act envisages that theCommission will play a role in the promotionand achievement of equality. Under the Act,the Commission may, for example, request anystate institution or any person to supply infor-mation on any measures relating to theachievement of equality, including informationon executive action and compliance with thelaw. The Human Rights Commission must alsoconsult the Commission when it deals withequality plans submitted by governmentdepartments. Unfortunately, this second part ofthe Act has not yet been brought into force.

3. Findings

The Committee met with the Chairperson of theCommission, supported by the officials of theCommission, on 2 March 2007. TheCommission’s written response to theCommittee’s questionnaire, as well variouswritten and oral submissions, including thosefrom civil society and certain governmentMinistries, informed the discussions. TheCommittee requested the Commission to fur-nish it with additional information relating to itsmonitoring of the implementation of interna-tional treaties, the number of complaintslodged with it by the public during the2005/06 financial year, the number and natureof complaints that were finalised in 2005/06and the number and nature of complaints notfully dealt with during the same year.

The Committee had a preliminary discussionwith the Chairperson as to why there was noproper Commission in place. The reasons forthis are expanded on in the report.

The Committee finds that it must report on theCommission in pain and sorrow, rather than inanger. As such, it strongly believes that theCommission represents a lost opportunity asuntil now it has failed to engage in a sustainedand effective manner with the policies,approaches and mechanisms to eliminate allforms of gender discrimination and to promotegender issues in South Africa.


As with the Human Rights Commission, theCommittee notes that the Commission on GenderEquality Act of 1996 came into law before the1996 Constitution was enacted, and contains ref-erences to the now repealed 1993 Constitution.Accordingly, the Act requires amendment to bringit into line with the Constitution.


The Commission has a broad mandate andpowers and has, at times, used its powerstowards achieving its objectives, most notablyby intervening as a friend of the court(described in Latin as amicus curiae) in gender-related Constitutional Court cases. However,the Committee finds that the Commission’spresentation to the Committee of its under-standing and interpretation of its mandate isinadequate:

a) The Commission informed the Committeethat it requires greater powers, includingpowers of enforcement, in order that it mightdeal more effectively with the various formsof gender discrimination in our society.


b) The Committee is of the view that, althoughthe Commission may not have any enforce-ment powers, the Commission on GenderEquality Act provides the Commission withwide-ranging legal powers that, if utilisedappropriately, could prove extremely effec-tive. Thus, for example, in undertaking aninvestigation the Commission is affordedwith powers of subpoena, as well as powersof search and seizure. It can also conducton-site inspections. Furthermore, theCommission has the power to recommendthe protection of witnesses where neces-sary, and to recommend reparations. It mayalso refer matters to court for enforcement.

c) The Committee expresses concern that theCommission has not used these powers,thereby contributing to the perception that itis powerless.

32

d) The Committee finds that the Commissionhas interpreted the enabling legislation aspreventing it from initiating litigation in itsown name or on behalf of any other person.The Commission has confined its role to sup-porting or participating in cases that raiseimportant gender issues.

33

This has comeabout in some instances in response to aninvitation by of the Constitutional Court tomake submissions In other cases theCommission has applied to be a friend of thecourt.

34

e) The Committee finds this reticence surpris-ing, given the fact that section 38 of theConstitution, which provides for access tothe courts for purposes of enforcement ofrights, allows anyone, including theCommission, to approach a court on behalfof another person, group or even in the pub-lic interest in order to assist in enforcingtheir rights.

f) The Promotion of Equality and Prevention ofUnfair Discrimination Act clearly provides theCommission with the capacity to litigate inthe equality courts in its own name or onbehalf of another. The Committee, therefore,finds it even more surprising that theCommission has never assisted anyone intaking a case to the equality courts becauseit ’has never been approached by prospec-tive litigants’. The Committee believes that,even if litigants have not approached theCommission, the Commission has a dutyactively to seek out litigants on whosebehalf it could take groundbreaking cases tothe equality courts.

g) The Committee finds that the Commission isnot being used as an alternative forum forthe resolution of complaints in terms of thePromotion of Equality and Prevention ofUnfair Discrimination Act. Equality courts areempowered to refer matters to theCommission for resolution by means ofmediation, conciliation or negotiation. TheCommission is also empowered to investi-gate cases referred to it by the equalitycourts and to make recommendations. It isnot the Commission’s fault that until now theequality courts have not referred matters tothe Commission.

h) The Commission has a duty to monitor andevaluate the policies and practices of gov-ernment departments to ensure that con-cern for gender equality remains a top prior-ity in the work done by the departments toensure ’gender mainstreaming’. The gov-ernment is the largest employer in thecountry. The Committee has not been able toascertain to what extent the Commissionhas had success in this regard, nor could theCommission provide the Committee withadequate proof of its activities.


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32 Civil Society Advocacy Programme (CSAP. October 2006. p 6833 Civil Society Advocacy Programme (CSAP). October 2006, p.4034 In this regard see Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319 (SCA); Bannatyne v Bannatyne 2003 (2) BCLR 111 (CC); S v Jordan

2002 (11) BCLR (CC); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39; Christian Lawyers Associationv Minister of Health 1998 (4) SA 1113 (T)

i The Committee finds that the Commissionhas not adequately fulfilled its legal obliga-tion to monitor and evaluate government’scompliance with relevant international obli-gations such as the Convention for theElimination of Discrimination AgainstWomen and other relevant instruments. Itwas not clear whether the Commission hasfully grasped the nature of its legal obliga-tion in this regard and, if it did, whether ithad given any priority to this.

j) The Commission told the Committee that itwas unable to adequately monitor and eval-uate the implementation of the Conventionfor the Elimination of Discrimination AgainstWomen and other relevant international legalinstruments because it found it difficult oreven impossible to obtain the necessary andtimely information from the Office on theStatus of Women. The Committee is of theview that the Commission has the necessarylegal powers to obtain all relevant documentsfrom the relevant government department oragency, but that it was either unaware of thispower or unwilling to use it. The Committeefinds this reticence regrettable.

k) The Committee notes that the Commissionhas a legal duty to liaise with similar institu-tions in terms of its mandate and functions.However, the Committee finds that theCommission has not been proactive in fos-tering structured relations with either theChapter 9 and associated institutions, orwith civil society organisations involvedwith gender issues. This is explored morefully later in this chapter.

l) The Commission informed the Committeethat it has undertaken research largely relat-ing to systemic gender-related problems,where the Commission has identified gaps

in the law, or where a specific issue hascome to its attention. However, theCommittee believes that such researchwould be more effective and far-reaching ifundertaken in collaboration with relatedinstitutions, such as the Human RightsCommission, as it would enhance the impactof the research and help to place systemicproblems of gender oppression within thebroader human rights agenda.

3.3. APPOINTMENTS

The Committee is deeply concerned about theshambles that has accompanied the recentappointment of new Commissioners. Due tothe delay in the appointment ofCommissioners, the Commission was, inessence, expected to function with only aChairperson and a secretariat for a period of 14months. The Committee finds such a frivolousapproach to the appointment of Commissionersto a constitutional body of this nature regret-table in the extreme. The Committee feels thatit is important to use this example to illustratethe severe negative impact of the lack of a sys-temic and coordinated process and mechanismfor the appointment of Commissioners. TheCommittee provides details relating to thepathology of the process that has betrayed theinterests of women:

a) The Commission for Gender Equality Act pro-vides for a Commission consisting of aChairperson and no fewer than seven but nomore than eleven Commissioners. The Act,which as already indicated predates the1996 Constitution, provides that thePresident appoints the Commissioners whoare nominated by a joint committee of theNational Assembly and the National Councilof Provinces and approved by both Housesof Parliament at a joint meeting. The legis-


lation has not yet been amended. TheConstitution is very clear, however, that theNational Assembly must recommend per-sons for appointment nominated by a com-mittee of the Assembly and approved by theAssembly by a majority of its members. TheCommittee therefore recommends that thelegislation be brought up to date.

b) The Act provides that, before appointingmembers of the Commission, the Minister ofJustice and Constitutional Development mustinvite interested parties to propose candi-dates for consideration by the joint commit-tee. As indicated, this has in any eventbeen overtaken by section 193 of theConstitution of 1996 which provides thatnominations for appointment as membersof the Commission must be made by a com-mittee of the National Assembly. TheCommissioners may be appointed on eithera full or part-time basis – no fewer than twoand no more than seven may be appointedon a full-time basis. This is slightly anom-alous. The Committee believes that thecommittee of the National Assembly, whichcould be an ad hoc committee, shouldextend the invitation to interested parties topropose candidates for appointment.

c) Due largely to policy differences amongstCommissioners, a number of vacanciesarose between January 2004 and January2005, while the terms of seven Com-mis-sioners expired in April and May 2006. TheCommittee notes that, with the exception ofthe Chairperson whose appointment is toexpire in October 2007, the Commission hasbeen without Commissioners for an extend-ed period, as these vacancies were onlyfilled in May 2007. The Committee wasinformed by the Chairperson of theCommission that it had continued to operate

legally in the absence of Commissioners, assection 4(2) of the Act provides for thevalidity of the Commission’s proceedingsdespite there being a vacancy in theCommission. The Committee is also con-cerned that section 4(2) of the Act does notensure the legal validity of the Commissionin a case where no Commissioners havebeen appointed. Therefore the Committee isof the view that the situation is highlyunsatisfactory, as a Commission withoutCommissioners cannot really be legallyoperational.

d) The appointments process began inSeptember 2005, when the Deputy Ministerfor Justice and Constitutional Developmentsubmitted nominations to the NationalAssembly to consider shortlisting appropri-ate candidates for recommendation forappointment. On 2 November 2005 theAssembly, by resolution, established an adhoc committee to consider nominations tofill the vacancies in the Commission andrequired it to report by no later than 15February 2006. However, shortly after estab-lishing the ad hoc committee, the last parlia-mentary session for 2005 ended, delayingit’s work. The ad hoc committee asked theNational Assembly to extend its term to 22March 2006, as it needed time to receivebriefings from the Department of Justice andConstitutional Development on the appoint-ment process. Why this was necessary is notclear to the Committee.

e) As the tenure of all Commissioners, exceptthe Chairperson, would end on 18 and 30April 2006, the Minister had extended aninvitation to the public on 24 February 2006to nominate suitable candidates to filleleven vacancies on the Commission. Theinvitation stated that the Minister would rec-


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ommend that the tenure of members not gobeyond 30 September 2007. The successfulcandidates would therefore serve for a termof one year.

f) The ad hoc committee engaged with theDepartment about the process and the limita-tion placed on the tenure of Commissioners.Members of the public and women’s organi-sations addressed the Speaker of the NationalAssembly, raising concerns about the shortterm of office, particularly regarding itsimpact on attracting suitable candidates. TheCommission also raised the same concernswith the Presidency, the Ministry and theSpeaker. The Speaker discussed the matterwith the Minister and requested that theMinister re-advertise the vacancies and callfor nominations of persons to serve a term ofoffice not exceeding five years as determinedby legislation. On 26 May 2006, the Ministerre-advertised the vacancies calling for nomi-nations for a term of office not exceeding fiveyears.

g) On 23 March 2006 the National Assemblyagreed to extend the term of the ad hoccommittee to 12 May 2006. On that date,the committee reported to the Assembly,recommending that the House support theSpeaker’s call that the vacancies be re-advertised for a term of office not exceedingfive years and that the House extend itsterm to allow it to complete its work. TheHouse adopted this report on 17 May 2006.

h) With an expanded mandate specifically toconsider the staggering of the term of full-time Commissioners within the five-yearlimit imposed by legislation, the ad hoc com-mittee recommended 11 candidates forappointment on 18 September 2006. In itsreport, the ad hoc committee recommendedthat the term of office of full-time

Commissioners be staggered over the fiveyears. After failing on 21 September 2006 toachieve the majority support of 201 votes asrequired by the Constitution, the House final-ly approved the recommendation of candi-dates by resolution on 12 October 2006.

i) The Speaker communicated the decision ofthe National Assembly to the President on17 October 2006 to initiate the appointmentof Commissioners. As mentioned previouslyin Chapter 2 of the report, in March 2007 thead hoc committee was reconvened specifi-cally to consider and make recommenda-tions to the President, through the Office ofthe Speaker, on the staggering of the termsof office of the full-time Commissioners. Theappointments were only made in May 2007.While the ad hoc committee’s initial failureto address the issue of staggering ofappointments provides some reason for thedelay, it is nevertheless unclear to theCommittee why it took five months for theappointments of the Commissioners to beeffected, when all that was required was forthe President to assent formally to the rec-ommendation of the National Assembly.

j) The Committee reiterates that the inordinatedelay in appointing Commissioners is highlyunsatisfactory, displaying a lack of serious-ness about the appointment ofCommissioners. The delays also highlight amore systemic problem, namely that thereis no uniform process or consistency ofapproach in the way vacancies are filled orappointments are made. The involvementof parliamentary ad hoc committees in theappointment of commissioners, particularlyin instances where vacancies arise duringtimes of parliamentary recess, creates prob-lems. The Committee makes specific rec-ommendations in Chapter 2 of this report inorder to rectify this situation.


k) The Committee regrets to conclude that veryfew parties come out of this with credit.


a) The Committee finds that public awarenessof the Commission is generally poor. Nordoes there appear to have been any signifi-cant increase in public awareness in pastyears: A countrywide study in 2000 foundthat only 34% of respondents had heard ofthe Commission. The most recent study, con-ducted in 2002, found that only 27% ofwomen had heard of the Bill of Rights andonly 34% of respondents knew of theCommission.

35

The Committee is dissatisfiedwith the degree of general awareness con-cerning the Commission and its activities,and finds that the lack of public visibilityundermines the Commission’s credibility andefficacy. The Committee is concerned thatvery few applications and requests for sys-temic investigations are made to theCommission. It is sad that over this periodthat there has been no significant increasein requests.

b) The Commission has a major role to play asa champion of the rights of women, througheducation, promotion and assistance withcomplaints. If women do not approach theCommission, it can hardly assist them inenforcing their rights.

c) The Committee notes that in addition to itshead office, the Commission has establishedoffices in all provinces, most recently inMpumalanga and Gauteng. Public awarenessprogrammes are carried out through a varietyof means, including workshops, seminars,dialogues with civil society organisations,campaigns and the distribution of promotion-al materials such as pamphlets and posters.

The Committee was informed, however, thatthese public awareness programmes are nei-ther systematic, nor are they linked to abroader outreach programme.

36

d) The Committee notes that the Commissionhas the power to investigate gender-relatedcomplaints of its own accord or on receipt ofa complaint. The Commission’s annual reportfor 2005/06 reveals that, although provincesdo report complaint statistics, these are notcollated. This makes it very difficult to ascer-tain the precise number of complaints theCommission receives annually, let alone whatthe outcomes of such complaints have been.The Committee learnt that the Commissionlacks the electronic systems and software toconduct analyses of the complaints received.Analysis is currently done manually and, gen-erally, only annually for reporting purposes.

37

This is a serious concern, impacting adverse-ly on the Commission’s ability to monitor andplan accordingly.


a) The Committee is perplexed by theCommission’s contention that its role andfunctions do not overlap with those of theother Chapter 9 and associated institutions.The Commission informed us that it views itsrole as complementing that of the otherChapter 9 institutions. However, this patent-ly ignores the reality that there are vitaloverlaps between the roles of different insti-tutions as the rights of women cannot bedivorced from human rights in general.

b) The Committee notes, in particular, that theCommission on Gender Equality Act envis-ages such an overlap and requires the


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35 Civil Society Advocacy Programme (CSAP). October 2006, p 21. Quotes from the National Institute for Public Interest Law and Research (NIPILAR)(2000) Awareness of human rights and human rights institutions (Johannesburg: CASE); and Government of South Africa (2006), A nation in themaking: A discussion document on macros-social trends in South Africa, Pretoria: Policy Co-ordination and Advisory Services (The Presidency) 2006.

36 Civil Society Advocacy Programme (CSAP). October 2006, p 7337 Civil Society Advocacy Programme (CSAP). October 2006, p 76

Commission, as far as it is practicable, tomaintain close relations with institutions orbodies having similar objectives to theCommission in order to foster common poli-cies and practices and to promote co-opera-tion in relation to the handling of complaintsin cases of overlapping jurisdiction and inother relevant circumstances.

c) The Committee notes that in 1998 theCommission formed part of a newly createdForum for Independent Statutory Bodies,which was aimed at providing better liaisonamong constitutional and statutory bodies,sharing information on developments in thefield of human rights, and making joint rep-resentations to government on matters ofcommon interest. Participation in the Forumwas voluntary. Most organisations havesince pulled out, leaving only the Chapter 9institutions to continue with this vision. Eventhis pared down version of the Forum isstruggling to implement substantive jointprogrammes successfully. Among the rea-sons given for this is a disparity in resourceallocation, both human and financial, thathas inhibited some Chapter 9 institutionsfrom fully participating in collaborative activ-ities. This body has, therefore, not func-tioned successfully, and it appears to theCommittee that it is defunct.

d) Today there is therefore limited co-operationbetween the Commission and other Chapter9 and associated institutions. TheCommittee believes that this is entirelyunsatisfactory and that there is an urgentneed for greater and more structured co-operation and collaboration between theChapter 9 institutions and related bodies.Such co-operation and collaboration shouldbe focused, carefully planned and imple-mented in a structured manner.

e) The Committee is aware of the potential forforum-shopping, with the attendant dangersof complainants taking their claims from onebody to the other even where there is nocase. As such, it is of particular importancethat the relevant bodies should work togeth-er to monitor the system of referrals. This isa particular concern for the Committee, asthe present referral system between theCommission and the Human RightsCommission and the Public Protectorappears to be informal in nature.Furthermore, the Committee notes that theCommission does not appear to have sys-tems in place to monitor the progress of itsreferrals to other institutions.

f) Conversely, a danger exists that com-plainants with a valid claim will be referredfrom one institution to another withoutbeing assisted. The Committee thereforerecommends that the various human rightsbodies take immediate steps to integratetheir complaints databases to ensure betterco-operation and prevent forum-shopping.The Committee further recommends thatthe structured co-operation should be aimedat embarking on joint public awarenesscampaigns, human rights advocacy cam-paigns and human rights training, as well asjoint submissions to Parliament or the courtson issues of vital mutual concern. TheCommittee makes recommendations in thisregard in Chapter 2 of this report.

3.6. RELATIONSHIP WITH INTERNATIONALORGANISATIONS

a) The Committee notes that the Commissionparticipates in a number of regional andinternational meetings, such as those organ-ised by the Southern African DevelopmentCommunity states, the African Union, and


the United Nations Committee on the Statusof Women. The Committee learnt that, typi-cally, these bodies do not provide the oppor-tunity for the Commission to participate offi-cially. The Commission must generallyattend these meetings as part of the officialgovernment delegation, either as delegatesor as technical advisers to the official countrydelegation, and not in their capacity asspokespersons for an independent statutorybody. The Committee regrets this lack ofofficial recognition, as it is a serious obstacleto the ability of the Commission to presentan independent account of government’sprogress regarding the achievement of gen-der equality in South Africa. Such treatmentviolates its independent status.

b) The Committee notes that the Commission’slack of voice and failure to consult withexternal stakeholders, including civil society,prior to international meetings is anotherfactor that undermines the Commission’scredibility and effectiveness.


a) Although independent, the Commissionoperates as part of the national gendermachinery, the institutional mechanismestablished by government in accordancewith its obligations in terms of internationaltreaties and conventions. However, as theCommittee pointed out in Chapter 2 of thisreport, like all other Chapter 9 institutionsthe Commission is obliged to be independ-ent and to perform its legislative and consti-tutional mandate impartially. Therefore itcannot be part of the government. TheCommittee is, therefore, concerned that theCommission does not fully appreciate theneed to remain independent and act inde-pendently from the Executive.

b) The Commission distinguishes itself from theOffice on the Status of Women and the spe-cial programme directorates, which aretasked exclusively with the implementationof the National Gender Policy Frameworkwithin government structures. TheCommission audits the implementation ofthe Policy Framework. However, theCommittee finds that the role and functionsof the Commission, the Office on the Statusof Women and the Joint MonitoringCommittee on Improvement of Quality ofLife and Status of Women are blurred asthese other components of the gendermachinery also have monitoring functions.

c) The Commission informed the Committeethat its relationship with the Executive isunstructured and issue-based. TheCommittee notes that the Commission expe-riences difficulties in obtaining access to offi-cial documents, such as the country reporton the status of women. In addition, theCommission complained of the lack ofrecognition that prevents it from participat-ing in official processes concerning genderreferred to previously.

d) The Committee notes that the Commissioncommits itself to pursuing a co-operativerelationship with all state institutions,including the Executive and the Legislature,in line with principles of co-operative gov-ernment as set out in section 41 of theConstitution. As discussed in Chapter 1 ofthis report, the Committee reiterates thatthe principles of co-operative governmentdo not apply to the Chapter 9 institutionsand that this approach is inconsistent withthe independence of the Commission andthe rulings of the Constitutional Court.


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a) In terms of the Constitution, the Commissionis accountable to the National Assembly.However, section 15(2) of the Commissionon Gender Equality Act provides that theCommission must report annually to thePresident, who, in turn, will ’cause suchreport to be tabled promptly in Parliament’.While this requirement does not prevent theCommission from submitting any report atany time to Parliament, in practice theCommission’s annual report is first presentedto the Minister of Justice and ConstitutionalDevelopment, who presents it to thePresident for tabling in Parliament. TheCommittee finds that this circuitous andtime-consuming route of reporting to theNational Assembly is inefficient, unneces-sary and does not give effect to the inten-tions of the Constitution.

b) The Commission reports to the PortfolioCommittee on Justice and ConstitutionalDevelopment on an annual basis. TheChairperson of the Commission told theCommittee that the portfolio committee isoverextended and that its interaction withthe Commission is not adequate. TheCommittee agrees that the nature of theCommission’s interaction with the portfoliocommittee is largely confined to scrutiny ofthe Commission’s annual report, which isunsatisfactory.

c) The Commission has interacted with theJoint Monitoring Committee onImprovement of Quality of Life and Status ofWomen on particular issues, such as theimplementation of the Domestic ViolenceAct 116 of 1998, which was adopted to pro-tect, amongst others, women against vio-lence from their life partners. In addition,

the Commission has made submissions toParliament on the Promotion of Equality andPrevention of Unfair Discrimination Act of2000, as well as on other legislation.

d) The Committee notes that the Commissionhas not approached Parliament, particularlythe portfolio committee, with regard to anymatter relating to the exercise of its powersor the performance of its functions as it islegally entitled to do. Although theChairperson of the Commission has told theCommittee that the Commission has writtento the Speaker, it is regrettable that theCommission has not turned to Parliament forassistance with its various problems.

3.9. RELATIONSHIP WITH CIVIL SOCIETY

a) The Commission on Gender Equality Actrequires the Commission to liaise and inter-act with any organisation that actively pro-motes gender equality and other sectors ofcivil society. The Commission confirmed thatthere was little interaction between itselfand the gender-based civil society organsbut expressed frustration that civil societyorganisations did not take the initiative inbuilding co-operative relationships. It isclear that any interaction with civil societyoccurs on an ad hoc basis. The Committeebelieves that this failure to take proactivesteps to formalise interaction with civil soci-ety bodies is deeply regrettable and inbreach of the Commission’s legal obliga-tions. This is an important provision, asParliament has considered it necessary thatsuch human rights bodies must have struc-tured relationships with civil society.

b) The Committee finds that, since 2000, theCommission has had limited consultationwith civil society as a way of informing itsoverall strategic planning, its work and its


focus areas. It was put to the Committeethat this is in contrast to the situation priorto 2000, when there was a substantialdegree of consultation with civil society toinform the Commission’s strategic planningand priorities. While the Committee cannotignore the effects of the absence of a fullCommission since 2004, it finds that the fail-ure to consult broadly undermines theCommission’s credibility and brings intoquestion the relevance of its work to its con-stituency.

c) The Committee notes the perceptionamongst external stakeholders that theCommission is unwilling to take a publicstand on controversial issues of overwhelm-ing public importance such as issues aroundservice delivery failures, the impact ofpoverty on women and the roll-out of anti-retroviral drugs for people living with HIVand AIDS. The Committee notes that suchperceptions, whether they are based on factor not, undermine the credibility of theCommission and contribute to a situationwhere external stakeholders are dissuaded‘from seeking the support of theCommission for their activities, or from con-sidering the Commission as a central playerin the ongoing struggles for gender equali-ty’.

38

The Committee, therefore, wishes toemphasise once again its finding that theCommission needs to improve its relation-ships with civil society organisations.


a) It is common cause that there has been sig-nificant internal conflict betweenCommissioners since the inception of theCommission more than ten years ago. In2001/02 senior persons resigned on

account of ideological differences of opinion,which should not have led to such tension.Again in 2004/05 differences emerged con-cerning the nature of the Commission’sapproach on women’s issues. As a result ofinternal tensions, a significant number ofpersons resigned.

There have also been tensions betweenCommissioners and staff members. TheCommittee was informed that certain prob-lems arose when Commissioners were allo-cated to specific provinces, which led to ten-sion between the staff employed by theCommission in that province and theCommissioner involved. These tensions haveimpacted on the institution’s overall effec-tiveness and efficiency, have affected theCommission’s credibility, and have fed theperception that the Commission lacks pro-grammatic focus.

The Committee is of the view that thesetensions should have been handled in a dif-ferent way and should not have affected theCommission’s work. The Committeebelieves that some of these tensions couldhave been avoided if the division of rolesand responsibilities amongst Commissionersand between Commissioners and staff hadbeen clearly identified from the outset. TheCommittee was informed that the differentroles have now been clarified and thatCommissioners have been given terms ofreference.

The Committee is of the view that it mightbe necessary formally to identify the lines ofauthority, responsibilities and accountabili-ties in the organisation. These must bedelineated in a detailed manner and shouldnot be unduly legalistic.


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38 Civil Society Advocacy Programme (CSAP). October 2006, p 54

b) The Committee is dissatisfied with theCommission’s present mechanisms for dis-closure of interests. Commissioners are prohibited in terms of the legislation fromconducting or assisting in an investigation inwhich they have any form of pecuniary orother interest. While the Committee learntthat the Commission does require disclosure,such information is not readily accessible tointerested persons. The Committee discussesthe issue of disclosure of interests more fullyand makes recommendations in this regardin Chapter 2 of this report.

c) The Committee finds that the provision inthe relevant legislation that the Presidentdetermines the remuneration of Commissio-ners is unsatisfactory. This has been thecause of some dissatisfaction amongCommissioners, as any adjustment is accom-panied by lengthy delays in receivingapproval.

d) In addition, the Committee finds that thepresent method of determining the level ofremuneration for Commissioners is a difficultissue. The Commission on Gender EqualityAct fails to outline the conditions of serviceof Commissioners, simply stating that this isto be determined by the President. In prac-tice, Commissioners are remunerated in linewith public service and National Treasuryregulations. The Commissioners are remu-nerated at lower levels than members ofother similar constitutional bodies. TheCommission has expressed concern aboutthis.

e) The level of remuneration of Commissionershas received criticism from some sectors ofcivil society, as salaries of Commissionersappear to comprise a disproportionate por-tion of the Commission’s budget.

39

f) The Committee learnt that there are no per-formance agreements against whichCommissioners can be evaluated in order tohold them accountable.

40

While remunera-tion for Commissioners comprises 35% ofthe Commission’s budget, the Commissionstated that this is due to the large numberof Commissioners and not the levels of pay-ment.

g) The Committee understands that theCommission feels that the number ofCommissioners should be reduced.

h) While the Commission has the authority toemploy the skilled staff it needs, theCommission has had difficulties with poorstaff morale and a high staff turnover. TheCommission’s inability to retain staff is aserious concern to the Committee, as itdirectly impacts on the continuity and effi-ciency of the Commission’s work.


a) The Commission informed the Committeethat the Commissioners and the secretariatprepare a Medium Term ExpenditureFramework budget, which is submitted tothe Department of Justice and ConstitutionalDevelopment for inclusion in theDepartment’s budget. In the past, theCommission was then invited to present itsbudget to the National Treasury. However,this process was amended for the pastfinancial year and the Commission informedthe Committee that it was not provided anopportunity to present its requirements tothe Treasury. The budget agreed upon byTreasury is then included in the budget forthe Department of Justice and ConstitutionalDevelopment, from which money is allocat-ed to the Commission.


39 Civil Society Advocacy Programme (CSAP). October 2006, p 6040 Civil Society Advocacy Programme (CSAP). October 2006, p 60

b) The Committee notes that the Commissiondoes not have a separate Vote but that itsbudget falls under the Budget Vote of theDepartment of Justice and ConstitutionalDevelopment, which transfers the fundsdirectly to the Commission. The Committeeis of the view that the location of theCommission’s budget allocation within theBudget Vote of the Department impactsnegatively on the perceived independenceof the Commission. The Committee makesspecific recommendations in Chapter 2 ofthis report in this regard.

c) The budget of the Commission has increasedfrom just over R19 million in 2003/04 (ofwhich R1.7 million was donor funds) to overR37 million in 2006/07. Taking into accountdonor funds, the Commission has, however,underspent since 2003/04.

d) The Table below also shows the budgets forthe Commission in terms of the MediumTerm Expenditure Framework. The Tablereveals that the Commission’s budget willincrease significantly from R39.7 million in2007/08 to R46.5 million in 2009/10.

Table 1: Income and Expenditure 2003/04 –2009/10

41

e) The Committee also notes with concern thatthe Commission has been opening provincialoffices across South Africa. The Commissioninformed the Committee that six staff mem-bers staffed each office and that the averageyearly cost for a provincial office wasapproximately R1.5 million. The Committeehas not been presented with any evidenceto justify the existence of provincial officesand could not be directed to any tangibledeliverables flowing from the work done bythese offices. The Committee is of the opin-ion that it may well be that this expenditureis a wasteful allocation of resources. TheCommittee questions the need for provincialoffices, and makes specific recommenda-tions in this regard in Chapter 2 of thisreport.


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R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Income 19 300 22 400 28 000 37 757 39 745 44 193 46 550

Expenditure 19 000 20 700 25 800

Surplus/(Deficit) 300 1 700 2 200


a) The Committee believes that, in the interim,a strong and effective Commission acting onits own is absolutely necessary for the trans-formation of gender relations in our country.It is a matter of regret that a combination offactors, both internal and external to theCommission, has undermined its efficiencyand effectiveness and has brought into ques-tion its relevance in its present formation.

b) The Commission displays a poor understand-ing of its legal and constitutional mandate.Recommendations to rectify this are included.

c) The approach to the appointment ofCommissioners was regrettable. This sorrystate of affairs has undermined theCommission’s operations. The Committeeincludes recommendations aimed ataddressing this problem.

d) The Committee finds that the Commission’sefficiency and effectiveness can beenhanced if certain institutional arrange-ments are addressed. These are elaboratedon in the recommendations below.

e) The relationship between the Commissionand civil society is unsatisfactory andrequires urgent attention.

f) The Committee finds the collaborationbetween the Commission and the otherChapter 9 and related constitutional institu-tions to be informal and unsystematic. This isof particular concern with regards to the refer-ral of cases. In Chapter 2 of this report theCommittee makes general recommendationsfor the improvement of such collaborativerelations that would apply to all the Chapter 9and associated institutions under review

g) The Committee finds that public awarenessof, and engagement with, the Commission’swork is inadequate and the Committeemakes recommendations in this regard.

h) At present, the Commission’s interactionwith Parliament, more specifically with thePortfolio Committee on Justice andConstitutional Development, is unsatisfacto-ry and insufficient for effective oversightand accountability. In addition to specificrecommendations aimed at facilitating theCommission’s accountability to the NationalAssembly, the Committee in Chapter 2 ofthis report makes general recommendationsfor the improvement of the oversight andaccountability mechanisms that would applyto all the Chapter 9 and associated institu-tions under review.

i) The budget process and funding model ofthe Commission adversely affect its account-ability and independence. The Committeemakes general recommendations in Chapter2 of this report on measures for theimprovement of the budget process thatwould apply to all the Chapter 9 and associ-ated institutions.

5. Recommendations

5.1. RECOMMENDATIONS FOR IMMEDIATEIMPLEMENTATION

The Committee makes the following recom-mendations to strengthen the efficiency andeffectiveness of the Commission in the interim:

a) The National Assembly should –

i. Establish appropriate mechanisms for thetimely initiation and systematic imple-


mentation of the processes for theappointment of Commissioners to ensurethat the outrageous delay experienced inthe appointment of the currentCommissioners is never repeated. Therecommendations of the Committee inChapter 2 of this report should be consid-ered in this regard.

ii. As soon as is reasonably possible, amendthe Commission on Gender Equality Actof 1996 to bring it into line with theConstitution. The Committee is not in aposition to recommend which committeeor entity within Parliament should initiatethis. This is a matter for Parliament todetermine.

iii. Ensure that the appointments procedure,and budgetary arrangements, arereviewed to support further and assertthe Commission’s independence. TheCommittee’s recommendations inChapter 2 of this report should be consid-ered in this regard.

iv. Ensure that clear lines of accountability,command and authority, particularlybetween the Commissioners themselvesand between the Commissioners and thesecretariat, are clearly specified in theCommission’s policies.

b) The Commission should -

i. Develop and popularise a five-yearstrategic plan and performance plans thatset annual priorities, for example thesocio-economic empowerment ofwomen. This would serve as an impor-tant monitoring and evaluation tool forthe Commission, civil society andParliament.

ii. Place greater emphasis on exercising itspowers of investigation of its own accordand bring the outcomes of such investi-gations to the special attention ofParliament by means of its reporting tothe National Assembly. Where appropri-ate, matters should also be referred tothe Public Protector or Human RightsCommission.

iii. Develop more stringent processes andaccountability measures for the co-ordi-nation of the work of its provincialoffices. Where provincial offices are tobe established, the Commission shouldconsider sharing premises with otherconstitutional bodies that might alreadyhave provincial offices. A cost-benefitanalysis should be conducted before theestablishment of additional provincialoffices is approved.

iv. Address forthwith certain institutionalmatters, such as policies to deal withinternal conflict at all levels, includingamongst Commissioners and betweenCommissioners and the Secretariat, andthe development of a staff retention pol-icy and strategy.

v. Ensure that collaborative relations withthe other Chapter 9 Institutions and relat-ed constitutional bodies are establishedand formalised, where appropriate.Collaboration should include, amongstothers, joint research, joint submissionsto the National Assembly (or Parliament)and joint court applications. All jointactivities should be budgeted in consulta-tion with the other relevant institutions.

vi. Formulate a communications strategy toensure that it raises its public profile and


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embark on a public awareness campaignand public outreach programme.

vii .Ensure that the details of directorships,partnerships and consultancies ofCommissioners and senior officials aredisclosed in the annual report. Disclosureof the pecuniary and other interests ofCommissioners and staff membersshould be made and kept in a register.Mention should be made in the annualreport of where such information is avail-able to interested parties. General recom-mendations concerning the disclosure offinancial interests are made in Chapter 2of this report.

c) For coherence and consistency, the oversightand accountability of the Commission shouldbe moved from its current location with thePortfolio Committee on Justice andConstitutional Development to the JointMonitoring Committee on Improvement ofQuality of Life and Status of Women. TheJoint Monitoring Committee should meetwith the Commission at least twice per yearto engage on its strategic plan and annualreport. The Joint Monitoring Committeeshould also provide opportunities forengagement on specific reports of theCommission as required. The interactionsbetween the Joint Monitoring Committeeand the Commission should be co-ordinatedby the proposed unit in the Office of theSpeaker discussed in Chapter 2 of thisreport.

5.2. RECOMMENDATIONS FOR FUTUREIMPLEMENTATION

The Committee makes the following recom-mendation for future implementation:

a) Human rights are indivisible and interrelat-ed, and the fact that some Chapter 9 institu-tions refrain from dealing with overlappingissues is not ideal. Given the indivisibilityand interrelated nature of human rights, theCommittee recommends that theCommission for Gender Equality be incorpo-rated into a single national human rightsinstitution, which will have a dedicatedCommissioner for Gender Equality.

b) The main advantage for the existence of asingle body is that matters will then not fallthrough the cracks. The present plethora ofbodies each competing for resources andareas of competence cannot be said to bethe most efficient or effective model.International best practice seems to be torecognise the seamlessness of rights andpromote them under a single umbrella body,which gives full expression to all dimensionsof human rights.

c) However, as this requires large-scale consti-tutional amendment, the Committee recog-nizes that this recommendation may not beable to be implemented immediately. TheCommittee’s recommendations in thisregard are elaborated further in Chapter 2 ofthis report, as well as in the Chapter on theHuman Rights Commission.



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CHAPTER 12

1. Background

South Africa’s 1996 Constitution is oftenreferred to as transformative as it requires andassists in facilitating the complete transforma-tion of our society from a culture that wasoppressive, secretive and profoundly disre-spectful of basic human rights to a humanrights based culture in which the human digni-ty of all is both respected and celebrated.

The Bill of Rights holds out the promise to allSouth Africans, no matter how poor or margin-alised, that their human dignity will be respect-ed and protected against abuse not only by thestate but also by private institutions and indi-viduals. The South African Human RightsCommission has a vital role to play in honour-ing this constitutional promise. Many poor andmarginalised individuals in South Africa do nothave easy access to the legal system and there-fore cannot exercise their rights without assis-tance from a strong, independent and impartialhuman rights body. At the same time, theestablishment and entrenchment of a vibranthuman rights culture requires strong leadershipfrom a legitimate, independent and authorita-tive body, as envisaged with the establishmentof the Commission.

For an accurate and responsible evaluation ofthe Commission, it is important to consider justhow it fits into our democratic landscape. Morespecifically, a keen understanding of theCommission’s place in the constitutional archi-tecture vis-à-vis the Legislature, the Executiveand the Judiciary is necessary.

The Commission has a duty to promote andprotect human rights but does not act as a sub-stitute for the Legislature, the Executive or theJudiciary. Instead, the Commission finds itselfpositioned somewhere between the Judiciary,

which is tasked with enforcing human rights,and the Legislature to which the Executive andother institutions are accountable. On the onehand, the Commission has the power todemand answers from the Legislature, theExecutive and private institutions and individu-als about adherence to and protection ofhuman rights, amongst others through itspower of subpoena. On the other hand, it doesnot have the authority, like a court, to makebinding judgments. Instead, the Commissionmust try to ensure the realisation of rightsthrough co-operation and mediation. In thisregard, it acts as a check on the legislative andexecutive branches of government, whileassisting them with the promotion and protec-tion of human rights in the broadest sense ofthe word. In order to be effective, theCommission needs to act fearlessly, withoutshowing any favour or prejudice. Yet it mustalso co-operate, when necessary, with some ofthe institutions it is required to hold account-able. By nature its work is sensitive. Therefore,institutions engaged with the promotion andprotection of human rights need support.


The Commission’s mandate is extremely broad,encompassing almost every aspect of civil,political, social and economic rights. The legalmandate of the Commission is derived fromsection 184 of the 1996 Constitution; theHuman Rights Commission Act 54 of 1994; thePromotion of Access to Information Act 2 of2000; and the Promotion of Equality andPrevention of Unfair Discrimination Act 4 of2000.

167THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

CHAPTER 12

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

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2.1. CONSTITUTIONAL MANDATE

The 1993 Constitution provided for the estab-lishment of a Human Rights Commission to pro-mote the observance of, respect for, and pro-tection of fundamental rights through a varietyof means.

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The Human Rights Commission Act53 of 1994, based on the provisions containedin the interim Constitution, saw theCommission’s establishment in October 1995and its launch on 21 March 1996.

Similarly, the 1996 Constitution provides for anindependent and impartial South AfricanHuman Rights Commission. Section 184 requiresthe Commission to promote respect for humanrights and a culture of human rights; to pro-mote the protection, development and attain-ment of human rights; and to monitor andassess the observance of human rights in SouthAfrica.

In order to achieve these goals the Constitutionrequires the adoption of legislation that pro-vides for the investigation and reporting ofhuman rights abuses; steps to be taken tosecure redress when rights have been violated;research to be undertaken; and the educationof society about the importance of humanrights. In addition, section 184(3) tasks theCommission with the duty to monitor theimplementation of the social and economicrights protected in the Constitution by once ayear requiring relevant organs of state to pro-vide the Commission with information on themeasures that they have taken towards therealisation of these rights.

2.2. MANDATE IN TERMS OF THE HUMANRIGHTS COMMISSION ACT

While other legislation is applicable to theCommission’s activities, the Human Rights

Commission Act 54 of 1994 forms the basis ofthe Commission’s work. The Act affirms theindependence of the Commission and requiresCommissioners to serve impartially and inde-pendently and exercise their powers, dutiesand functions in good faith and without fear,favour, bias or prejudice. The Act also prohibitsany organ of state, or any person, from interfer-ing with, hindering or obstructing theCommission in the exercise of its duties. TheAct requires that all organs of state afford theCommission the assistance it reasonablyrequires to protect its independence, impartial-ity and dignity.

The Act provides the Commission with widepowers to carry out its responsibilities, whichinclude the promotion of human rights througheducation; the monitoring and evaluatinghuman rights; and protecting the rights of ordi-nary people through investigation of com-plaints, mediation, litigation, and redress.

It is important to note that the Commission isnot a court of law and cannot make bindingdecisions on complaints lodged with it. It can,however, investigate individual complaints orsystemic infringements of human rights, makerecommendations, and “name and shame” theparties found to be violating the rights of oth-ers. It can also mediate disputes and take casesto court in either its own name or on behalf ofan aggrieved party.

When investigating complaints, the Commis-sion has considerable powers to gather infor-mation, including the power (within the limitsof the law) to subpoena witnesses, to enterand search premises, and to attach articles ofrelevance to its investigation. These powersprovide the Commission with all the legal toolsit requires to pursue its investigations and toaddress more systemic infringements of human


42 In terms of section 116 of the 1993 Constitution, the Commission’s powers and functions were to ‘promote the observance of, respect for and the protection of fundamental rights;develop an awareness of fundamental rights among all people of the Republic; make recommendations to organs of State at all levels of government where it considers such actionadvisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and this Constitution, as well as appropriate measuresfor the full observance of such rights; undertake such studies for report on or relating to fundamental rights as it considers advisable in the performance of its functions; and requestany organ of state to supply it with information on any legislative or executive measures adopted by it relating to fundamental rights’. In addition, the Commission could commenton whether proposed legislation was in violation of international human rights law and could investigate, either on its own initiative or on receipt of a complaint, any alleged vio-lation of fundamental rights, as well as assist the complainant in achieving redress, including pursuing a case before a court or other forum.

rights (For example, systemic infringementsthat occur in certain sectors such as farmingcommunities and schools).

Furthermore, as part of the Commission’s mon-itoring and evaluation function, relevant organsof state must provide the Commission withinformation on an annual basis on measurestaken to realise the rights contained in the Billof Rights concerning housing, health care, food,water, social security, education and the envi-ronment. The role of the Commission in thisrespect is of cardinal importance, particularlyfor the vast numbers of South Africans forwhom the realisation of the socio-economicrights contained in the Bill of Rights is a priori-ty as it concerns their daily struggle for survival.

There is an important provision in the Act thatis not found elsewhere. Parliament recognisedafter lengthy debate that placing emphasisexclusively on political rights is like throwing arope of sand to our people. Therefore, theConstitution provides the Commission with aunique power to identify, defend and initiatesocio-economic aspects of the Bill of Rights.Given the tremendous socio-economic dispari-ties found in our society, the Commission isunder enormous pressure to deliver in respectof its part of the promises concerning the socio-economic rights contained in the Constitution.Unless these rights are adequately addressed,the full enjoyment of the civil and politicalrights also found in the Constitution will remaina secondary consideration.

2.3. MANDATE IN TERMS OF PROMOTIONOF ACCESS TO INFORMATION ACT

The right of easy access to the relevant infor-mation necessary to vindicate one’s rights is ofsupreme importance in a constitutional democ-racy. The legislation aimed at helping ordinary

South Africans to gain such access gives theCommission an important role in its implemen-tation.

The Promotion of Access to Information Act 2 of2000 creates an elaborate framework withinwhich individuals must operate to access rele-vant information, but does not create a sepa-rate Information Commissioner to oversee theimplementation and smooth running of thesystem. Instead, the Act envisages that theSouth African Human Rights Commission willplay a major role in ensuring the effectiveimplementation and operation of this constitu-tionally mandated legislation.

Firstly, the Act requires the Commission to takea lead in educating and informing the publicabout the way the legislation works. TheCommission is required to compile and regular-ly update a guide on how to use the Act. Theguide must be published in each official lan-guage of the Republic and must be compiledwithin three years of the commencement ofsection 10 of the Act, which came into opera-tion on 15 February 2002. The Commissionmust also, within the available resources,develop and conduct education programmes tohelp members of the public, especially thosefrom disadvantaged communities, to under-stand the ways in which they can exercise theirrights in terms of the Act.

Secondly, the Act requires that the Commissionmonitor the Act’s implementation and submitdetailed reports to the National Assembly inthis regard. The Commission must report annu-ally to the National Assembly on the number ofcases lodged in terms of the Act, their out-comes and how many of the decisions wereappealed internally or to the courts. This reportmust also include any recommendations for theimprovement or amendment of the Act or


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related legislation and particulars of records ofrequests for access to information in relation toeach public body in terms of the Act.

Thirdly, the Act allows the Commission to assistpeople who approach it and wish to exercisetheir rights with making the necessary applica-tions in terms of the Act.

The Act explicitly states that any expenditure inconnection with the performance of theCommission’s functions in terms of the Actmust be defrayed from moneys appropriated tothe Commission for that purpose.

2.4. MANDATE IN TERMS OF PROMOTIONOF EQUALITY AND PREVENTION OFUNFAIR DISCRIMINATION ACT

Although significant progress has been made intransforming our society and its institutions,structural inequalities remain deeply embed-ded in social relations, practices and attitudes.These inequalities invariably lead to unfair dis-crimination and the marginalisation of vulnera-ble groups and frustrate the achievement ofthe society promised by the Constitution, whichupholds the values of human dignity, equality,freedom and social justice in a united, non-racial and non-sexist society. To address thisproblem in a systematic and comprehensivemanner, the Promotion of Equality andPrevention of Unfair Discrimination Act 4 of2000 was enacted in terms of section 9(4) ofthe Constitution, which prevents or prohibitsunfair discrimination on any of the listedgrounds including race, gender, sex, pregnancy,marital status, ethnic or social origin, colour,sexual orientation, age, disability, religion, con-science, belief, culture, language and birth.

The Act provides an accessible avenue for ordi-

nary people without access to lawyers to chal-lenge unfair discrimination by the state or,unusually, by private institutions or individualsthrough the creation of a system of equalitycourts. It envisages an important role for theSouth African Human Rights Commission in thesuccessful implementation and functioning ofthe provisions of the Act.

Firstly, the broad jurisdictional provisions in theAct allow the Commission to institute proceed-ings in an equality court on behalf of anyaggrieved person or group. Where a presidingofficer of such a court decides to refer a matterto the Commission, it must deal speedily withsuch a case. The Act also places a duty on theCommission to assist complainants who wish tolodge a complaint and to conduct investigationswhere necessary.

Secondly, the Act envisages an important rolefor the Commission in the promotion andachievement of equality. The Commission may,for example, request any state institution orany person to supply information on any meas-ures taken relating to the achievement ofequality including, where appropriate, legisla-tive and executive action and compliance withlegislation, codes of practice and programmes.The Commission is also charged with receivingequality plans from government Ministries andmust consult with the Commission for GenderEquality when dealing with such plans. Thispart of the Act has not yet been brought intoforce. This is regrettable, as it is clear that mat-ters of discrimination still require urgent atten-tion.

The Commission must on a quarterly basis inspecial reports to the President and toParliament in terms of the Human RightsCommission Act, include an assessment of theextent to which unfair discrimination on the


grounds of race, gender and disability persist inSouth Africa and the effects of such practices.These reports must include recommendationson how best to address the problems identified.

South Africa also has international obligationsunder numerous binding treaties and custom-ary international law in the field of humanrights, which promote equality and prohibitunfair discrimination. Among these are therights specified in the Convention on theElimination of All Forms of DiscriminationAgainst Women, the Convention on theElimination of All Forms of Racial Discriminationand the Convention on the Rights of the Child.

3. Findings

The Committee met with the Commission on 9March 2007. The Commission’s written responseto the Committee’s questionnaire, as well vari-ous submissions from civil society, the academ-ic sector and the Ministries informed the dis-cussions. The Commission also supplied theCommittee with supplementary informationfollowing the discussions. From these, the fol-lowing emerged:


a) The Human Rights Commission Act, 1994, isoutdated. This legislation was originally con-sistent with the provisions of the 1993Constitution, which differ in importantrespects from those contained in the 1996Constitution. This is no longer sufficient.These discrepancies have implications forthe Commission’s mandate and functioning.For example, the 1996 Constitutionentrenches a number of socio-economicrights not contained in the 1993Constitution, such as the right to a cleanenvironment, the right of access to housing

and healthcare, the right of access to food,water and social security and the right toeducation. The Commission is constitution-ally mandated to monitor the progressiverealisation of these socio-economic rightscontained in the Bill of Rights. As theHuman Rights Commission Act predates the1996 Constitution, it makes no mention ofthis important task.

b) When the Department appeared before theCommittee, it was informed through theDeputy Minister of Justice and ConstitutionalDevelopment that the preparation of draftlegislation to amend the Human RightsCommission Act to bring it into line with the1996 Constitution was “at an advancedstage”.

c) Furthermore, the regulations promulgated interms of section 19 of the Human RightsCommission Act relating to staff matters,including salaries, appointments, codes ofconduct, transport and legal liability, are out-dated and in some instances in contraven-tion of labour law.

43

This creates difficultiesin managing the Commission and con-tributes to difficulties in the promotion andmaintenance of healthy labour relationswithin the Commission.

d) The Commission has raised this matter on anumber of occasions with both the PortfolioCommittee on Justice and ConstitutionalDevelopment and the Department of Justiceand Constitutional Development. The Com-mittee was supplied with a letter to theMinister of Justice and ConstitutionalDevelopment, dated 27 October 2005, inwhich officials of the department informedthe Commission that their draft staff regula-tions had been submitted to the formerMinister towards the end of 2004.


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43 For example, section 16 of the Regulations limits the grant of paid maternity leave to two confinements, while no maternity leave may be granted in the first year of employment at the Commission. This is in contravention of the Basic Conditions of Employment Act 75 of 1997.

e) During 2002 the Commission submitteddraft staff regulations to the Department forcomment and promulgation. However, theDepartment indicated that section 19 of theHuman Rights Commission Act, which wouldhave formed the legal basis for the promul-gation of the regulations, required amend-ment. As these amendments were neveraccomplished, the drafting of the regulationsstalled. Since then the Commission hasupdated its draft regulations, which are sub-stantially in line with the rules applicable inthe Public Service. These have been adopt-ed as “interim regulations”.

f) The Committee notes with concern that thedelay in updating the Human RightsCommission Act and its associated regula-tions affects the ability of the Commission tocarry out its mandate effectively and effi-ciently, and impacts negatively on its opera-tional efficiency.

3.2. UNDERSTANDING AND INTERPRETA-TION OF MANDATE

a) The Committee was impressed with the wayin which the members of the Commissionexplained their understanding of theCommission’s mandate when they appearedbefore the Committee. The Commissionersshowed a firm grasp of the social, econom-ic and political context within which theywere required to operate and displayed anintimate knowledge of the legal mandateunder which they were required to achievetheir goals.

b) Over the past decade, the Commission hasbuilt up a reputation amongst human rightsactivists and members of the public as anactive and passionate defender of human

rights. With limited financial and humanresources, the Commission has made a realdifference to the promotion and protectionof human rights in the areas it focused on.At the same time, the Commission has man-aged to retain civil relationships with theLegislature and Executive, and has workedwith relevant individuals and institutions inthe other branches of government whenthis was required.

c) The Commission has also developed aninternational reputation as an independentinstitution for the promotion and protectionof human rights and assists human rightscommissions elsewhere in Africa withcapacity building.

d) The members of the Commission affirmedtheir belief in the interdependence and indi-visibility of rights and expressed a desire toinvestigate and report every complaint andpromote all the rights in the Constitution.However, the Chairperson of theCommission informed the Committee that,given the Commission’s limited resources, itremained a reality that, unless a specificissue had a strong champion, the chanceswere that the Commission would focus itsresources elsewhere.

e) Despite its many remarkable achievements,and in the light of the admission madeabove that strong champions get thingsdone, the Committee wishes to highlight thefollowing important areas in need of furtherattention and improvement:

3.2.1. Children and disabled persons

a) The Committee is of the view that childrenand disabled persons are among the vulner-able groups most in need of a champion to


ensure the full realisation of their rights.However, the Committee notes that, despitethe contributions of the Commission in thepromotion and protection of human rightsbroadly, it devoted limited resources andenergy to the promotion and protection ofthe rights of children and disabled persons.While the Committee is pleased to note thatthe Commission has now appointed a full-time co-ordinator to address the rights ofchildren and disabled persons, theCommittee is of the view that each of theseareas is of considerable importance and,therefore, each should be dealt with by a“champion” of its own. Accordingly, theCommittee expresses the need for theestablishment of distinct structures with adedicated focus on the rights of children anddisabled persons.

b) However, the Committee is not in favour ofthe proliferation of human rights bodies. Ittherefore recommends that such dedicatedstructures should form part of existinghuman rights bodies. Until legislation isenacted to include children in the NationalYouth Commission’s mandate, the HumanRights commission should strengthen itsfocus on children.

c) The Committee also wishes to propose theappointment of a dedicated Commissionerto “champion” the rights of disabled per-sons. The Committee notes that the Officeon the Status of Disabled Persons has beenestablished to promote and protect therights of people with disabilities. This officeis located within the Office of the Presidencyand its staff report directly to the Minister inthe Presidency. Provincial offices replicatethe national office.

d) The Committee is concerned that there maybe some duplication of functions, which

may result in squandering of resources.Furthermore, fragmentation of functions andservices could result in confusion and uncer-tainty amongst the public.

e) The Committee, therefore, suggests thatonce a dedicated Commissioner has beenappointed for the Commission, the Office ofthe President should review the Office onthe Status of Disabled Persons.

3.2.2. Promotion of Access to Information Act

a) The Promotion of Access to Information Actgives people the right to request relevantinformation, thereby providing ordinary peo-ple with easy access to information neces-sary for them to enforce their rights andaccess that to which they are entitled. Thereason for the Act is that for a long timegovernment departments failed to supplyrequired information.

b) The Committee was informed that this veryimportant legislation aimed at promotingaccess to information does not, as intended,provide ordinary people with easy access toinformation needed for them to enforcetheir rights and access their entitlements.The Committee was informed that about 50percent of the requests for information fromgovernment departments never receive aresponse.

c) The complex and potentially expensiveappeals mechanism provided for in the leg-islation places further obstacles in the wayof ordinary individuals wishing to accessinformation. The Act contains a long list ofgrounds for refusing a request. Once arequest has been refused, an elaborateinternal appeals process must be followed,


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which requires that an individual providelegal reasons for the appeal. This is not aneasy task for most laypersons.

d) Should this internal appeals process beunsuccessful, an aggrieved individual canonly challenge decisions denying access toinformation in an ordinary court of law. Thecost and complexity of such processes oftenmake it difficult if not impossible for individ-uals or groups without adequate resourcesto exercise their right to information throughthe Act. It is significant that only a handfulof cases reach the courts.

e) Without assistance, members of the publicwhose requests for information are deniedwould have to show extraordinary resilienceif they were to lodge a successful appeal inthe courts. As noted above, the HumanRights Commission has the power to assistindividuals with these appeals. It is notclear to the Committee whether theCommission has assisted any individuals orgroups wishing to lodge an appeal, as envis-aged in the Act.

f) The Committee was also informed about thelack of knowledge by public servants andprivate bodies of the provisions of the Act.Given the fact that the Commission wastasked with the duty to inform and educateall parties about the provisions of the Act,this lack of knowledge points to a failure onits part. The Committee notes that this fail-ure may be blamed partly on the lack ofresources provided for this task, despite theexplicit provisions in the legislation provid-ing for funding.

g) The Committee notes that the Commissionhas failed to prepare guidelines on the pro-visions and implementation of the Act with-

in the legally stipulated timeframe. TheCommittee acknowledges, however, thatthe deadline applicable to the Commissionwas extended through the issuing of thenecessary regulations. As mentioned,capacity constraints have also contributed tothe Commission’s failure in this regard.

h) The Committee received proposals for a newbody to deal with this issue. The proposalscentre around the establishment of an inde-pendent information commissioner mandat-ed to receive appeals from persons lodgingrequests for information and make bindingorders on access and disclosure. The infor-mation commissioner would also giveadvice to government departments and offi-cials seeking clarification of their duties andresponsibilities with respect to access toinformation. Such a proposal results fromimpatience with the capacity of theCommission to provide real teeth in imple-menting this legislation.

i) The Committee believes that a dedicatedinformation commissioner would go a longway towards ensuring effective implemen-tation of the Act. In its submission to theCommittee, the Commission proposes twooptions concerning the location of an infor-mation commissioner. One option is to cre-ate an entirely new body that does not formpart of the Commission. This would ensurethat the staff and commissioner of this bodywould be appointed as specialists, who willdeal solely with the Promotion of Access toInformation Act as well as legislation per-taining to privacy.

j) The second option, which the Committeefavours, is to appoint an information com-missioner within the Human RightsCommission. The Committee is opposed to


the proliferation of human rights bodies, andthis approach would ensure that the infor-mation commissioner works within an exist-ing structure. To ensure the success of thisintervention, the Committee proposes thatthe information commissioner should beallocated a ‘ring-fenced’ budget within thebudget allocation of the Human RightsCommission and a dedicated staff.

k) There are many advantages to this option,including the efficient and effective sharingof infrastructure and other resources.

l) At the request of the Committee, theCommission costed the two options. Theestimated cost for option 1 is approximatelyR 7,6 million, while that for option 2 isapproximately R 5,6 million. The Committeerecognises that accepting the second optionof vesting an information commissionerwithin the Human Rights Commission ismuch cheaper and, therefore, cost effective.

m)Notwithstanding the resource constraints ofthe Human Rights Commission, theCommittee highlights the urgent need forthe Commission to pay particular attentionto its functions and obligations in terms ofthe Promotion of Access to Information Act.

n) In general, the Committee is of the opinionthat the Commission needs to adopt a moreaggressive stance towards the implementa-tion of the Act, particularly regarding provi-sions on the reporting by private and publicbodies as well as assisting in the bringing ofmatters to the courts.

3.2.3. The Promotion of Equality andPrevention of Unfair Discrimination Act

a) Section 28 of the Promotion of Equality andPrevention of Unfair Discrimination Act,which relates to special measures to pro-mote equality with regard to race, genderand disability, has not yet come into opera-tion. The Committee was informed that theCommission has raised this problem withthe previous Minister of Justice, but that ithas not received a response. In 2006 a com-mittee of Parliament also looked into thismatter, but the Committee is not aware thatany results were forthcoming.

b) The Committee finds it regrettable that sixyears after the Act came into force, the reg-ulations that would bring this section intooperation have yet to be promulgated. Thisdelay adversely affects the Commission’seffectiveness in promoting the right toequality, which is central to the enjoymentof all other human rights in South Africa.

c) The Committee commends the Commissionfor its initiatives in terms of the Act.Amongst others, the Commission has -

i. Produced a guide on how to use the Act;

ii. Established an Equality Unit and hasensured law clinic status for the legalservices departments of most of itsprovincial offices to handle equality courtwork;

iii. Brought and concluded at least fifteencases of unfair discrimination in equalitycourts; and

iv. Received and processed approximately428 equality cases in 2005/06.


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d) The Committee notes the following chal-lenges that negatively impact on theCommission’s work in this regard:

i. Not all the designated equality courts arefully functional and where they are func-tional they are not always easily accessi-ble and/or visible to the public. The reg-ulations are also cumbersome, and theCommittee has been informed that theaverage time for a complaint to befinalised is two years, which is inordi-nately long.

ii. The cost of public transport to accessequality courts is unaffordable to poorcomplainants.

iii. In some instances, presiding officers andclerks at equality courts are hesitant toact because they are unfamiliar with theAct and, therefore, lack confidence.

e) The Committee was informed that the Actdoes not appear to be used much by thepoor and marginalised, but primarily by thewealthy or educated. The Committee istherefore of the opinion that theCommission must take a more proactiveapproach towards assisting individualsaffected by unfair discrimination, especiallyin rural areas and in isolated townships.

3.2.4. International obligations

a) The Committee notes that the Commissionhas interpreted its mandate to include mon-itoring of how South Africa fulfils its obliga-tions in terms of international treaties. TheCommission has increased its capacity to dothis, and envisages playing a strong moni-toring role regarding the ratification, report-ing and following up on the recommenda-

tions of treaty bodies as well as the work ofthe various special rapporteurs. TheCommission is now aiming to present anindependent account of South Africa’s com-pliance with its various international humanrights treaty obligations. The Committee isof the view that such work is vital andaccordingly commends the Commission fortaking this initiative.

b) The Committee notes the Commission’s par-ticipation in the processes to promotehuman rights and the growth and develop-ment of national human rights institutions inAfrica. The Committee learnt of the richinterplay between the Commission and thenational human rights institutions of othercountries. In this regard, the Commissionregularly hosts delegations from other coun-tries. The Committee also notes that theCommission was requested to do a presen-tation to the Judicial Committee of the PanAfrican Parliament on its mandate, andmore generally on the role and place ofhuman rights and national human rightsinstitutions in the broader human rightsframework of the African continent. This isanother example of the commendable activ-ities of the Commission.

3.3. APPOINTMENTS

a) While the 1993 Constitution provided for theappointment of eleven Commissioners, theHuman Rights Commission Act of 1994 pro-vides that no fewer than five Commissionersmay be appointed. However, the Act doesnot stipulate the maximum number ofCommissioners that may be appointed.

b) In terms of the 1996 Constitution, thePresident appoints both full-time and part-time commissioners on the recommenda-


tion of the National Assembly after adoptionof a resolution supported by a majority of itsmembers. When appointments need to bemade, an ad hoc Committee of the NationalAssembly is established for this purpose.This Committee invites nominations fromthe public and civil society, draws up ashortlist and calls applicants on the shortlistfor interviews. The Committee then submitsits recommendations to the NationalAssembly for approval. Commissioners holdoffice for a fixed term that is determined bythe President but may not exceed sevenyears. Commissioners may be reappointedfor one further term.

c) The Committee notes with concern that theterm of all five Commissioners currentlyserving will come to an end simultaneouslyin 2009. This may result in a loss of institu-tional memory and may negatively affectthe continuity of the Commission. TheCommittee therefore proposes that at leasttwo new Commissioners be appointedimmediately. One commissioner should beappointed to deal with rights issues relatingto disabled persons, while the secondshould deal with issues of access to informa-tion. The Committee discusses the issue ofthe staggering of appointments of commis-sioners more fully and makes recommenda-tions in this regard in Chapter 2 of thisreport.

d) The Committee is not convinced that thecase for limitations of the term of office hasbeen made, particularly in a country withlimited resources for the replacement ofcommissioners. In the case of the HumanRights Commission, continuation of the termof office would be required, particularly inconsideration of the important responsibili-ties of the Commission and the proposed

revision of the human rights framework andmechanisms. The Committee makes a spe-cific recommendation to address this matter.

e) The Committee notes that, during the previ-ous appointment cycle, the Office of thePresident may have misunderstood the pro-visions of the Constitution and hence disre-garded the National Assembly’s recommen-dation to appoint eleven Commissioners,appointing only five. The Committeebelieves that the appointment of only fivecommissioners to an institution with asbroad a mandate as that of the SouthAfrican Human Rights Commission is deeplyproblematic and wholly inadequate. TheCommittee fails to understand the rationalefor the appointment of the minimum num-ber of Commissioners, particularly given theexpanded mandate of the Commission interms of the Promotion of Access toInformation Act and the Promotion ofEquality and Prevention of UnfairDiscrimination Act. The Committee, there-fore, recommends that the legislationshould provide for the appointment of aminimum of seven Commissioners.


a) The Commission has a constitutional andlegal mandate to conduct public educationand promote public awareness of humanrights. The Committee was informed thatthe Commission has embarked on extensivepublic education, particularly through itsofficial training provider, the National Centrefor Human Rights Education and Training.The Committee was impressed by the modeldeveloped by the Commission, as well as bythe range of activities and programmesundertaken by this body. It is, however, ofsome concern that the Commission’s public


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awareness campaigns remain, in essence,urban based, although the Committee wasinformed that the Commission has nowlaunched a programme aimed at addressingthis bias.

b) The Committee was also informed that theCommission has had considerable success inincluding human rights education across theschool curriculum. The Commission is to becongratulated on this very importantachievement, which has not been replicatedby other entities elsewhere.

c) The Committee notes that the Human RightsCommission is one of the most widelyknown of the Chapter 9 institutions, withapproximately 50% of the public indicatingan awareness of the existence of theCommission. Nonetheless, the Committeesupports the Commission’s contention thatmore needs to be done to increase publicawareness of the functions, activities andservices of the Commission.

d) The Committee notes that the Commissionhas admitted that it does not, at present,have a comprehensive and effective com-munications policy and strategy. This under-mines the good work done by theCommission. The Committee is of the opin-ion that such a strategy should make betteruse of existing points of contact betweenthe public and state institutions such as pub-lic service offices, post offices, communitycentres and social grant pay-points toenhance its visibility and provide ordinarypeople with better access to its services. TheCommittee refers to some innovative initia-tives on the part of government that couldbe useful in this regard. This matter is dis-cussed more fully and general recommen-dations are made in Chapter 2 of this Report.

e) The Commission’s relationship with civil soci-ety is unstructured. While committees allow-ing for civil society participation were estab-lished in terms of section 5 of the HumanRights Commission Act, these committees areno longer functioning. The Committee sup-ports the intention, expressed by members ofthe Commission, to reconstitute the commit-tees as a way of bringing outside expertiseinto the work of the Commission, includingthe expertise of civil society.

f) The Committee received a representationalleging that commissioners should notserve on the boards of non-governmentalorganisations because this could lead to con-flicts of interest. However, the Committeedoes not share this view. The Committeebelieves that the involvement of commis-sioners with non-governmental organisa-tions will serve to strengthen relationshipswith such organisations and will build thecapacity and knowledge of Commissioners.The Committee, in fact, encourages suchinvolvement with non-governmental organ-isations, as long as it does not detract froma Commissioner’s core functions and respon-sibilities to the Commission.

g) Some submissions before the Committeeconcluded that the Commission does notfocus sufficiently on issues that deeplyinvolve the public such as the HIV and AIDSpandemic. Given the enormous publicexpectations resting on the shoulders of theCommission, the Committee is of the viewthat the Commission should develop a com-prehensive strategic communications strate-gy that will inform the public about its vari-ous activities and will highlight theCommission’s independence and willingnessto assist the most marginalised and vulner-able sections of the community.


h) The Committee notes that the Commission,through its legal department, deals with arelatively large number of complaints.Obviously, such a large number of com-plaints reflects on the state of human rightsin our society. From the 5 763 complaintsreceived in 1999/2000, the Commission’scaseload has increased to 11 710 in2005/06. Of the more than 11 700 com-plaints received in the year ending in 2006,3 903 were accepted, and 547 were reject-ed because they did not, in the opinion ofthe legal department, constitute a humanrights claim. A further 1 636 complaintswere referred to other bodies such as theCommission for Gender Equality and thePublic Protector for resolution. TheCommission could not tell the Committeewhether these cases referred to other bod-ies were ever resolved because theCommission had not followed this up, whichis pretty much common practice. The statusof the remaining 5 624 cases is unclear tothe Committee. The Commission resolved732 cases through mediation, conciliation orcourt intervention, while in 1 360 cases afinding was made after receiving the versionof both parties involved.

i) The Committee notes that the Commissionhas identified the lack of public awarenessof the provisions of the Promotion of Accessto Information Act and the Promotion ofEquality and Prevention of UnfairDiscrimination Act as constraining factors intheir effective implementation and utilisa-tion. Accordingly, the Committee recom-mends that the Commission be more proac-tive in promoting public awareness of theprovisions of these Acts.


a) The Commission is accountable to theNational Assembly. At present it reports tothe Portfolio Committee on Justice andConstitutional Development on its annualreport. The Committee understands thatusually the Portfolio Committee wouldengage with this report for about two hours.Members of the Commission expressed adesire for more structured and informedengagement by the Portfolio Committeewith the annual report. The Committee’sproposals on parliamentary oversight inChapter 2 of this report addresses these con-cerns.

b) As the Commission’s mandate is broad,straddling almost every sector of society, itis frequently requested to appear before dif-ferent parliamentary committees to provideinput on issues relevant to each committee.This often draws the Commission away fromits core work and places extra strain on itshuman resources. In this regard there isneed for a focal point in Parliament to facil-itate and co-ordinate the manner in whichParliament and the Human RightsCommission (as well as other Chapter 9Institutions) interact. The Committeeaddresses this matter in the general chapteron the relationship between Parliament andthe Chapter 9 and associated institutions.

c) The Committee compliments theCommission on the publication of its 6thSocio-Economic Rights Report in 2006. TheCommittee notes the progressive improve-ments in the socio-economic rights reportsover the years. In particular, there has beena vast improvement in the manner in whichinformation is solicited from governmentdepartments and the accuracy with which


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that information is reported. The Committeeemphasises the need to ensure that theinformation in these reports is current, sincethe reports can act as important yardsticksfor the Executive, civil society and the courtsfor measuring the progressive realisation ofsocio-economic rights in South Africa. TheCommittee suggests that the Commissionshould highlight specific aspects of its socio-economic rights report by making use of itslegal mandate to bring matters to the atten-tion of the National Assembly for discussionand action. This could serve as an impetusfor national debate on matters of national orpublic interest emerging from the Commis-sion’s reports.

d) The Committee further recommends thatthe National Assembly should arrange bi-annual joint meetings of the portfolio com-mittees dealing with the subject areas cov-ered in the socio-economic rights report.These would include housing, health, envi-ronmental affairs, education, social develop-ment and water affairs.


a) The Commission engages with the Executivein an ad hoc or unstructured fashion, basedon particular human rights issues that mayarise. However, members of the Commissioninformed the Committee that it does notalways receive the necessary reports fromgovernment departments, especially con-cerning the provision of information for thesocio-economic rights reports. While theCommission’s socio-economic rights reportsdo mention non-compliant departments,this does not appear to be a sufficient deter-rent. The Commission also reported that,when dealing with requests for access toinformation in terms of the Promotion of

Access to Information Act and with com-plaints against government departments ingeneral, the Commission is regularly metwith a lack of co-operation or assistancefrom government officials.

b) As the Commission can only make recom-mendations and cannot formally sanctionoffending officials, its effectiveness lies, inpart, in its ability to hold those responsiblepublicly accountable and to seek answers toconduct that impacts on human rights.Accordingly, the Commission’s efficacy iscompromised by the tardiness of govern-ment departments in responding, or theirfailure to respond altogether.

c) The Commission informed the Committeethat its practice at present is to write to gov-ernment departments on three occasions tosolicit the required information or response.Only if there is no response after the thirdletter of request does the Commission resortto its powers of subpoena. The Committeeviews this as an overly timid approach and apoor use of resources. The Committee,therefore, recommends that the Commissionshould proceed to use its powers of subpoe-na if a department does not respond after areasonable time following the first letter ofrequest.

d) The Commission has a unique opportunity tosolicit the assistance of the NationalAssembly in dealing with problematic rela-tionships with members of governmentdepartments. The Committee, therefore, rec-ommends that if a matter is one of publicimportance and a department either doesnot respond within a reasonable time, orresponds but rejects the complaint, or pro-vides incomplete information, theCommission should exercise its powers in


terms of section 6 of the Human RightsCommission Act to bring the matter to theattention of the National Assembly.


a) As the Commission’s mandate is extraordi-narily broad, there is much potential foroverlap or duplication of functions betweenit and other Chapter 9 and related institu-tions. In 1998 the Commission initiated thecreation of a Forum for IndependentStatutory Bodies to provide for better liaisonamong the various constitutional and statu-tory bodies, to share information on devel-opments in the field of human rights, and tomake common representation to govern-ment on matters of common interest.Participation in this body was voluntary.However, over time most organisationspulled out of the Forum, leaving only theChapter 9 institutions to continue with col-laborative efforts. The remaining institu-tions have been struggling to implementsubstantive joint programmes successfully.A reason that was given for the lack of cohe-sion was the disparity in resource allocation,both human and financial, that has prevent-ed or inhibited some Chapter 9 institutionsfrom participating in joint programmes.More recently, the European Union has fund-ed a project to formalise the co-operationbetween the Commission, the PublicProtector and the Commission for GenderEquality.

b) There is a need for greater and more struc-tured co-operation and collaborationbetween the Chapter 9 institutions andrelated constitutional bodies. Such co-oper-ation and collaboration should be focused,planned and implemented in a structured

manner. The Committee has been informedby Commissioners that, given the prolifera-tion of bodies, there is a danger that com-plainants will forum-shop and will take theirclaims from one body to another evenwhere they have no case. Conversely, a dan-ger exists that complainants with a validclaim will be referred from one institution toanother without being assisted.

c) The Committee, therefore, recommends thatthe various human rights bodies take imme-diate steps to integrate their complaintsdatabases to ensure better co-operation andprevent such forum-shopping.

d) The Committee further recommends thatsuch structured co-operation should beaimed at embarking on joint public aware-ness campaigns, human rights advocacycampaigns and human rights training, aswell as joint submissions to Parliament orthe courts on issues of vital mutual concern.

e) High quality research in the field of humanrights is important and necessary but can bevery costly. The Committee recommendsthat the Commission co-operate with otherChapter 9 institutions or academics to planand execute joint research projects. Suchprojects should be budgeted for at the startof each year and would require long termplanning from all bodies involved.

f) At present, the Commission collaborateswith other institutions in the following ways:

i. The Commission has a formal arrange-ment with the Commission for GenderEquality regarding the handling of casesand complaints by the legal departmentsof both institutions. In addition, theCommissions have indicated that they


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attempt to ensure that their offices are inthe same building or in close proximity ofeach other but are constrained by exist-ing long-term leases. The Committee isof the opinion that this should be a highpriority because it will save money andprovide better and more convenientaccess to the public.

ii. There is no formal relationship with thePublic Protector, although complaintshave been referred between the institu-tions where appropriate. The Committeeis pleased to note that the Commissionhas an electronic database and systemthat allows it to monitor complaintsreferred to other constitutional bodies.As previously recommended, this data-base should be integrated with those ofother human rights bodies as soon aspossible.


a) The Commission has experienced internaldissent and this led to the resignation of itsChief Executive Officer towards the end of2005. According to news reports, theCommission had been beset with difficultiesin the preceding two years, including anexodus of staff and reports of victimisationby senior management. In July 2005 unhap-py staff members addressed an open letterto the Speaker of the National Assemblystating that at least 15 staff members hadresigned in the first six months of the yearand asking for her urgent intervention tosave the Commission from a “crisis”.

b) The structural reasons for such tensions canbe found in the relevant provisions of thePublic Finance Management Act that assigns

the position of chief accounting officer to theChief Executive Officer. The Chairperson ofthe Commission also informed theCommittee that the Human RightsCommission Act fails to make it clear thatthe Chairperson is the head of theCommission. This has led to confusion aboutthe hierarchical relationship between theChief Executive Officer and the Chairpersonof the Commission and the lines of authori-ty between them. The Committee believesthat establishing clear lines of authority isimperative in any institution or body, andhas made appropriate recommendations todeal with such problems should they arise inthe future in Chapter 2 of this report.

c) The division of roles and responsibilitiesamongst Commissioners and between com-missioners and staff has not always beenclear, creating tensions that have impactedon the Commission’s organisational efficien-cy and effectiveness. The Committee ispleased to note that in order to avoid thepotential for conflict, the Commissioners andChief Executive Officer have signed perform-ance contracts. In addition, they meet reg-ularly to ensure the smooth running of theCommission. The Commission has alsoadopted a document in 2006 that outlinesthe channels of accountability in the organi-sation. Furthermore, Commissioners conductvisits to the provincial offices to ensure theoverall smooth running of the organisation.

d) The Committee finds that the issue of full-time Commissioners undertaking privatework requires clarification. There is no poli-cy in place that requires Commissioners todisclose or seek permission for their involve-ment in private or commercial concerns.However, in September 2006 Commission-ers were for the first time required to


declare their membership of boards ororganisations, and whether such member-ships were accompanied by financialreward. The issue of the disclosure of finan-cial interests, as well as membership ofboards is discussed more fully in Chapter 2of this report. The Committee also makesrecommendations in this regard.

e) The Committee notes that in the absence ofthe necessary legislative framework con-templated in terms of section 219(5) of theConstitution, the President determines theremuneration and conditions of service ofCommissioners in consultation with theCabinet and the Minister of Finance. Such anarrangement can create the perception thatthe independence of the Commissioners isnot fully safeguarded. The Committee there-fore finds this arrangement wholly unsatis-factory. The Committee makes recommen-dations in this regard in Chapter 2 of thisreport.


a) Members of the Commission informed theCommittee that the Chief Executive Officerprepares the draft budget in consultationwith the Commissioners. Once this process isfinalised, it is submitted to the Treasury toinfluence the Treasury’s budgetary determi-nation in terms of the Medium TermExpenditure Framework. A copy of the budg-et is also submitted to the Director-Generalof the Department of Justice andConstitutional Development.

b) This is done in October and months later theCommission is informed about the size of itsbudget by the Department of Justice andConstitutional Development. TheChairperson of the Commission made it clear

that the Chief Executive Officer never inter-acts with the department regarding theCommission’s budget.

c) The National Treasury makes its recommen-dation to Cabinet where the Minister ofJustice and Constitutional Development mayhave to defend the budget of theCommission. There seems to be some con-fusion, however, about the role of theMinister and her officials in the budgetingprocess.

d) The Committee believes that there is a needto ensure consistency and certainty in thefunding arrangements of the institutionsunder review, which at present are sadlylacking. The Committee addresses ways todeal with this matter in Chapter 2 of thisreport.

e) The Committee notes with approval that theCommission has received unqualified auditreports for five consecutive years.Expenditure trends versus budget allocationhave increased over the past five years dueto an increase in the Commission’s activities.Some of these activities relate to the legisla-tive duties of the Commission in terms ofthe Promotion of Access to Information Actand the Promotion of Equality andPrevention of Unfair Discrimination Act.

f) In 2001/02 the Commission was allocatedR32.7 million, which has increased to R 49.2million in 2006/07. The following table pro-vides a detailed breakdown of theCommission’s baseline allocation and expen-diture since 2003/2004, as well as of theincreases in terms of the Medium TermExpenditure Framework.


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Table 1: Budget allocation and expenditure2003/04 – 2009/10

44



R’000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Budget Allocation 32 728 37 653 41 774 49 220 55 281 60 603 66 129

Expenditure 29 458 38 827 42 393

Surplus/(Deficit) 3 270 (1 174) (719)

g) The Committee notes with concern that therehas been a dramatic increase in personnelcosts and that these comprise roughly 60%of total expenditure. However, theCommittee was unable to quantify to whatextent the increased budget and increasedspending on personnel have contributed toan increase in the mandated activities of theCommission.


a) It appears to the Committee that the HumanRights Commission more than adequatelysatisfies requirements as identified in theCommittee’s terms of reference with regardto professionalism, efficiency and effective-ness. The Committee believes that the workdone by the Commission is of vital relevancefor South Africa and makes an important con-tribution to the deepening of democracy andthe achievement of a human rights culture inthis country.

b) As pointed out previously, however, legisla-tion governing this institution is outdated andmust be amended. There is also a need,firstly, for closer co-operation betweenhuman rights institutions and, secondly, for arationalisation of functions, role and organi-

sation of the various human rights institu-tions to ensure that the rights of vulnerableand marginalised sectors of society are givenpriority and to bring our institutions in linewith international good practice in thisregard.

c) The Committee considers the appointmentprocedures for Commissioners to be inappro-priate. In Chapter 2 of this report, theCommittee makes recommendations that itbelieves will enhance consistency, coherenceand accountability in this process.

d) The Committee supports the Commission’sintentions to establish mechanisms toenhance collaboration and co-ordination withother Chapter 9 and associated institutionsand civil society organisations. TheCommittee encourages the Commission to bemore vigorous in its efforts in this regard. Afull discussion is found in Chapter 2 of thisreport, as well as recommendations in thisregard.

e) The parliamentary mechanisms for oversightof the work of the Commission and engage-ment with its reports are inadequate. TheCommittee makes general recommendationsin Chapter 2 for the improvement of theoversight and accountability mechanisms

that would apply to all the Chapter 9 andassociated institutions under review.

f) The budget process and funding model ofthe adversely affects its accountability andindependence. The Committee makes gen-eral recommendations in Chapter 2 for theimprovement of the budget process thatwould apply to all the Chapter 9 and associ-ated institutions under review.

5. Recommendations

The principal recommendation of theCommittee in respect of the Human RightsCommission is to establish a Commission thatwould comprehensively address the promotionand protection of all human rights within a sin-gle institution. This recommendation flowsfrom the Committee’s understanding that allhuman rights are interdependent and indivisi-ble and that one well-resourced body wouldbetter address the human rights needs of espe-cially the most marginalised and vulnerablemembers of the community.

The Committee is, however, aware of the factthat the establishment of a single Commissionis a complex task that will also require signifi-cant constitutional amendment. The Committeediscusses the reasons and advantages for sucha move in Chapter 2 of this report, where it alsoprovides detailed proposals for the implemen-tation of this recommendation.

The Committee notes that this amalgamationmay take some time to complete but that theCommission may well benefit from the insightsgained during this review process. TheCommittee is, therefore, of the opinion thatthere is a need for the immediate implementa-tion of specific recommendations in this regard.

5.1. RECOMMENDATIONS FOR IMMEDIATEIMPLEMENTATION

The Committee makes the following recom-mendations to further improve the efficiency,effectiveness and independence of theCommission:

a) The Department of Justice and ConstitutionalDevelopment should –

i. Finalise and table in Parliament forthwitha new draft of the Human RightsCommission Act of 1994 to bring it intoline with the 1996 Constitution and themandates of the Commission. The draftBill should also address the issues con-cerning the respective responsibilitiesand powers of the Chairperson and ChiefExecutive Officer of the Commission.

ii. The draft should further provide for theregulation of pecuniary and other inter-ests of Commissioners and senior officialsin line with the recommendations of theCommittee, and should require that theCommissioners and officials disclose theirinterests in a register that is kept avail-able to interested parties.

b) In particular, Parliament should –

i. Initiate a review of the appointments andbudget arrangements for all theCommissions to support further andassert the Commissions’ independence.The Committee makes specific proposalsin this regard in Chapter 2 of this report.

ii. Initiate the speedy appointment of atleast two more Commissioners. Oneshould be specifically designated to dealwith the rights of disabled persons and


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the other with access to informationissues.

iii. Ensure that no less than sevenCommissioners are appointed for a termof no more than 7 years, renewable for afurther term.

iv. Ensure that the Portfolio Committee onJustice and Constitutional Developmentmeets with the Commission more oftento review the Commission’s annual reportand strategic plan and activities.

v. In consultation with the Committee ofChairpersons of the National Assembly,co-ordinate the Commission’s interactionswith other parliamentary committees.

vi. Pass an amendment to the Human RightsCommission Act 54 of 1994 to provide forthe President to extend the term of officeof the current Commissioners for a periodof 2 years. Parliament should ensure thatthe comprehensive revision of the Act iscompleted before this extended term ofoffice expires.

c) In the meantime, the Commission should: -

i. Initiate the process of establishing formalcollaborative relationships with other rel-evant Chapter 9 institutions as suggestedin this chapter to ensure far closer co-operation between institutions with aview to their eventual amalgamation.This process must pay special attention tothe need to integrate the complaintsdatabases of the relevant human rightsinstitutions, as discussed above.

ii. Use the powers granted to theCommission in terms of section 6 of theHuman Rights Commission Act, or corre-sponding provisions in the proposedamending legislation, to bring to theattention of the National Assemblythrough the Office of the Speaker shock-ing instances of departmental failures orunsatisfactory responses to any enquiriesor complaints.

iii. Develop a communications policy andstrategy to raise awareness of and popu-larise its work.

iv. Expand on and further invigorate publicawareness campaigns and public educa-tion programmes.



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CHAPTER 13

1. Background

The Independent Communications Authority ofSouth Africa (the Authority) is an independentbody established as the regulator and mainlicensing body in the broadcasting andtelecommunications sectors. The Authority isthe successor to the previous IndependentBroadcasting Authority and the South AfricanTelecommunications Regulatory Authority andtook over their functions.

The rationale for the merger of these two bod-ies in 2000 into a single entity is ostensiblyfound in the increasing convergence of thebroadcasting, telecommunications and infor-mation technology sectors, as well as in effi-ciency and cost benefits. However, neither theenabling legislation, nor the Authority’s internalstructure in which the divisions for broadcastingand telecommunications continued to operatequite separately from each other, reflectedthese technological advancements. It was onlyin 2005, with the enactment of the ElectronicCommunications Act 36 of 2005, that theunderlying legislation pertaining to broadcast-ing and telecommunications was repealed toeffect convergence of these sectors.

The enactment of legislation to establish theAuthority has a complex history, as the broad-casting and telecommunications sectors havedeveloped separately and were regulated bydifferent laws. However, digitalisation has seenthe traditionally separate broadcasting andtelecommunications sectors converging, withthe result that the old service and technology-specific legislation no longer met the require-ments of markets that had subsequentlymerged.

1.1. INDEPENDENT BROADCASTINGAUTHORITY

The Independent Broadcasting Authority wasestablished in terms of the IndependentBroadcasting Act 153 of 1993 on 30 March1994, its purpose being to ensure a free, fairand open broadcasting system. Its objects pro-vided for the regulation of broadcasting activi-ties in the public interest to promote the provi-sion of a diverse range of sound and televisionbroadcasting services on a national, regionaland local level, which when viewed collective-ly would cater for all languages and culturalgroups. The legislation established an inde-pendent regulatory authority to ensure thedevelopment of three levels of broadcasting:public, private and community-based.

45

The passage of the Independent BroadcastingAuthority Act in 1994 took place “in the pres-sure-cooker environment of the political nego-tiations’;

46

giving effect to the prevailing viewthat freedom of expression is a prerequisite forfree political activity. As such, priority wasgiven to ensuring that the regulation of broad-casting was done independently of the thengovernment and, therefore, that broadcastingwas free from political interference. A fairprocess for awarding licenses, whether to pri-vate or public broadcasters, was also consid-ered important.

These priorities were captured in section 15 ofthe 1993 Constitution, which entrenched theright of freedom of expression. Specifically, sec-tion 15(2) of the 1993 Constitution providedthat ”all media financed by or under the controlof the state shall be regulated in a mannerwhich ensures impartiality and the expressionof diversity of opinion”. While section 16 of the1996 Constitution sets out the right of freedomof expression, it does not contain a provision

189THE INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA

CHAPTER 13

THE INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA

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45 Horwitz, R. Communications and Democratic Reform in South Africa. Cambridge University Press: New York. 2005.46 Horwitz, R. 2005. p 148

similar to that contained in section 15(2) of the1993 Constitution. An independent regulator forbroadcasting is instead provided for in Chapter9 of the 1996 Constitution that deals with stateinstitutions supporting constitutional democra-cy. Section 192 of the Constitution provides thatnational legislation must establish an inde-pendent authority to regulate broadcasting inthe public interest, as well as to ensure fairnessand diversity of views broadly representing oursociety.

However, the provision relating to broadcastingis not placed in section 181 of the Constitutionwhich lists the other institutions found inChapter 9 as state institutions strengtheningconstitutional democracy. A possible explana-tion for this distinction is that the constitutionalentrenchment of the broadcasting regulatorwas decided only in 1996, shortly before thepassage of the final Constitution. The negotia-tors debated the proper location in theConstitution of the principle that had beenembodied in section 15(2) of the 1993Constitution, as the drafters of the 1996Constitution did not believe that the provisionshould form part of the Bill of Rights.Nevertheless, it was thought that the protec-tion afforded by section 15(2) of the 1993Constitution was sufficiently important torequire incorporation elsewhere in theConstitution.

Traditionally broadcasters have been closelyregulated in terms of who may broadcast andwhat may be broadcasted. Given South Africa’spolitical history, the provision for the existenceof an independent regulator for broadcasting isintended to give meaning to certain rights suchas freedom of expression, the right of access toinformation, and language rights. If implement-ed effectively, such regulation can thereforecontribute to the quality of democracy.

1.2. SOUTH AFRICANTELECOMMUNICATIONS REGULATORY AUTHORITY

The importance of telecommunications to mod-ern life should not be underestimated. It wouldnot be stretching the point too far to say thatvirtually all of modern life is dependent ontelecommunications. Certainly, it is a drivingfactor in economic growth, determining a coun-try’s ability to participate in the global econo-my.

47

Direct revenue from telecommunicationservices comprises, on average, between twoand three percent of the gross domestic prod-uct for most countries. In South Africa, this per-centage is significantly higher, being estimatedto be in the region of six percent, and it isimpossible to determine the value of the sectorto the economy as a whole.

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Until 1992, telecommunications in South Africawas delivered on a monopoly basis through agovernment department responsible for Postsand Telecommunications. The department fellunder the control of the Postmaster General,who was subject only to the Minister of Postsand Telecommunications. South Africa was notunique in this regard. It is only in the past 25years that there has been a trend in parts of thedemocratic world to liberalise telecommunica-tions.

49

The alleged benefits of liberalisation(and the resulting competition) for the sectorinclude greater efficiency, cheaper services,more pricing options, more services, better andmore reliable technology, and better customerservice. This is in contrast to the historical posi-tion that viewed the telecommunicationsindustry as a natural monopoly, as this wasthought to be the most efficient and effectiveway of providing services at the lowest cost.

50

Before 1996, the communications sector inSouth Africa was a monopoly driven exclusive-


47 Love, D .An Overview of the South African Telecommunications Industry: From Pre-1994 Policy-Making to Gloomy 2005 Realities. HonoursResearch report submitted to the University of the Witwatersrand. Supervisor: Professor Tom Lodge. 2005. p 3.

48 Love, D. 2005.p 4.49 Love, D. 2005.50 Love, D. 2005. p 3

ly by the government Department of Posts andTelecommunications. The sector was commer-cialised in 1992 with the establishment of anincorporated entity Telkom SA Limited(Telkom). However, the locus of powerremained largely unaltered with thePostmaster General and the Minister ofCommunications retaining control over Telkom.

In 1996 the new government issued a WhitePaper that expressed commitment to the idealof telecommunications not being simply anaspect of development, but a precondition forits success.

51

The White Paper set out a clearroute marking the transition from exclusivitythrough a duopoly towards full liberalisation.The resulting regulatory framework created bythe Telecommunications Act 103 of 1996 wasintended to smooth the sector’s liberalisation.

It is widely accepted that a major component ofthe reform of the communication’s sector is theexistence of an independent regulator that isconsidered to be credible to the industry, legit-imate to consumers and accountable to stake-holders.

52

As, globally, this sector has in thepast been characterised by state-ownedmonopolies, the international model nowrequires that these regulators be independentto reduce the potential for conflict of interestarising from the multiple public roles played bythe state in this sector. Therefore, regulatorsare intended “to set the rules of the game, par-ticularly reduce barriers for new entrants andcurtail any abuses of the dominant marketpower of incumbents who often continued tobe owned by the state”.

53

It is argued that the presence of an independ-ent regulator has a direct influence on thespeed and quality of reform, and is essential forraising investment capital, and ensuring effi-cient and responsive service delivery.

54

However, while there may be general agree-ment regarding the need for an independentregulator, the complex relationship of govern-ment with the industry creates many manifes-tations of this ideal.

55

In South Africa, while the 1996 Constitution hasprovided in section 192 that national legislationmust create an independent authority to regu-late broadcasting in the public interest and toensure fairness and diversity of views broadlyrepresenting South African society, no such con-stitutional imperative existed for telecommuni-cations. Instead, the Telecommunications Act103 of 1996 created an independent regulator.

The South African TelecommunicationsRegulatory Authority was established in 1997with regulatory responsibilities. The Minister ofCommunications was empowered to play amajor role in licensing and regulation of thesector, despite the possibility for conflicts ofinterest arising from the Minister’s multipleroles in the sector as both policy maker andcustodian of state assets.

1.3. INDEPENDENT COMMUNICATIONSAUTHORITY OF SOUTH AFRICA

As previously stated, in May 2000 both theIndependent Broadcasting Authority and theSouth African Telecommunications RegulatoryAuthority were dissolved, and their functionstransferred to the newly established Authority.The Independent Communications Authority ofSouth Africa Act 13 of 2000 established a singleregulatory authority for the purposes of regulat-ing both broadcasting and telecommunications.The merger of the Independent BroadcastingAuthority and the South African Telecommuni-cations Regulatory Authority was undertaken inrecognition of the rapid convergence of thebroadcasting, telecommunications and infor-


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51 Love, D. 2005.52 Love, D. 2005. p 6.53 Gillwald, A. Submission on the Independent Communications Authority of South Africa (ICASA), 2007. p 654 Cohen, T. Rethinking (Reluctant) Capture: The Development of South African Telecommunications 1992 – 2002 and the Impact of Regulation.

Work in progress for the TPRC Conference, Washington D.C., 28 September 2002.55 Cohen, T. 28 September 2002.

mation technology sectors requiring a singleregulator.

Nevertheless, more than a decade since thetransition to democracy, South Africa continuesto have a heavily regulated and partially gov-ernment-owned communications sector. Yetthe country’s social and economic developmentagenda remains pressing. Prices of serviceshave risen considerably; for example, the priceof a landline remains unaffordable to the vastmajority of South Africans. These high pricesare not only detrimental to the economy, butalso prevent many South African’s from partici-pating in the knowledge economy.

56


As previously mentioned, the 1996 Constitutionestablishes through national legislation anindependent regulatory authority to regulatebroadcasting in the public interest and toensure fairness and a diversity of views broad-ly representing our society.

Both the Constitution and the enabling legisla-tion describe the Authority as independent. Notonly does section 192 of the Constitution estab-lish an independent regulator through legisla-tion, the enabling legislation affirms this byproviding that the Authority is independent,subject only to the Constitution and the law.The Authority must be impartial, and performits functions without fear, favour or prejudice.

Furthermore, the legislation specifically pro-vides that the Authority must function withoutany political or commercial interference. Whilethe issue of independence is explored morefully elsewhere in this chapter, this is a themethat the Committee was referred to time andtime again, particularly in the submissions it

received. In this regard, it is noteworthy thatthe submissions from the Ministry andDepartment of Communications were bothdevoted entirely to this topic.

As successor-in-title to the IndependentBroadcasting Authority and the South AfricanTelecommunications Regulatory Authority, theAuthority regulates the environment for opera-tors in broadcasting and telecommunicationsand provides universal access and service deliv-ery. Its functions include making regulations;issuing licences to providers of telecommunica-tions and broadcasting services; planning;supervising licence holders; controlling andmanaging the frequency spectrum; hearing anddeciding on disputes and complaints brought byindustry or members of the public againstlicence holders; and protecting consumers fromunfair business practices, poor quality servicesand harmful or inferior products. The Authorityhas been recently assigned postal services, pre-viously under the auspices of the Departmentof Communications.

The Authority must also give effect to theElectronic Communications Act 36 of 2005. ThisAct repealed the Independent BroadcastingAuthority Act, the Telecommunications Act andpart of the Broadcasting Act 4 of 1999. TheElectronic Communications Act provides for theregulation of electronic communications (whichincludes broadcasting, telecommunications,network services and electronic communica-tions) in the public interest and for that purposeto promote and facilitate convergence.

3. Findings

The Committee met with the IndependentCommunications Authority of South Africa on20 February 2007. The discussions wereinformed by the Authority’s written response to


56 Love, D. 2005.

the questionnaire circulated by the Committeeprior to the meeting, as well as submissionsfrom the Ministry and the Department ofCommunications and individuals. TheCommittee also requested additional informa-tion from the Authority, which was provided,and received subsequent submissions from theDepartment of Communications. TheCommittee finds as follows:


a) The Constitution and enabling legislation isclear regarding the Authority’s independ-ence. Section 192 of the Constitution pro-vides that national legislation must establishan independent authority to regulate broad-casting in the public interest, and to ensurefairness and diversity of views broadly rep-resenting South African society.

Accordingly, the Independent Communic-ations Authority of South Africa Act 13 of2000, as amended, guarantees theAuthority’s independence: Section 3(3) notonly states that the Authority is independ-ent, subject only to the Constitution and thelaw, and must be impartial, but requires thatit perform its functions without fear, favouror prejudice. In this respect section 3(3) mir-rors the provisions of section 181(2) of theConstitution, which is the provision that liststhe other bodies created in Chapter 9 of theConstitution as state institutions strengthen-ing constitutional democracy. Furthermore,section 3(4) of the Act states that theAuthority must function without any politicalor commercial interference.

b) The Committee received submissions on theissue of the Authority’s independence. Itwas put to the Committee that the constitu-tional provision for the establishment of a

body of this nature is inappropriate. In par-ticular, the Department of Communicationspresented a number of factors in support ofthis view, including:

i. The Authority is not listed in section 181of the Constitution and, consequently,can be distinguished from the other insti-tutions described in Chapter 9 of theConstitution;

ii. The constitutional criteria of fairness, effi-ciency and diversity were intended toapply to broadcasting, and not totelecommunications or to electronic com-munications; and

iii. Given the rapid technological develop-ments within the communications sector,it is no longer appropriate to retain theAuthority’s constitutional status.Constitutional entrenchment creates thedanger that the regulator might beunable to adapt sufficiently swiftly to anever-changing technological environ-ment.

c) The Committee notes that the submissionsfrom the Ministry and Department ofCommunications only address theAuthority’s legal standing. The Committee isof the view that this is a misunderstanding,as the Constitution is not the only place thatprovides for an independent regulator. Infact, the phraseology of the enabling legis-lation goes much further than the constitu-tional provisions. Furthermore, there areother constitutional institutions, not found inChapter 9 of the Constitution, which arenonetheless independent. The relevant con-stitutional provisions and the legislationdetermine their legal status.


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d) The Committee also considered the submis-sion of Parliament’s Constitutional ReviewCommittee that section 192 of theConstitution should be amended by substi-tuting the word ‘communications’ for theword “broadcasting”. However, the Commit-tee is of the view that for political and legalreasons such an amendment is unnecessaryat this time.

e) Further, on the issue of independence, theCommittee notes that while the Authority isdescribed in the enabling legislation asindependent, the Independent Communi-cations Authority of South Africa Act, asamended, contains a number of provisionsthat appear to be in conflict with, or poten-tially curtail, the Authority’s independence:

i. Section 6A provides that the Ministermust, in consultation with the NationalAssembly, establish a performance man-agement system to monitor and evaluatethe performance of the Chairperson andother Councillors of the Council estab-lished by the Act. Performance agree-ments are to be concluded betweenevery Councillor, including the chairper-son, and the Minister, and the evaluationprocess is to be undertaken by a panelconstituted by the Minister in consulta-tion with the National Assembly. Thepanel’s report, however, is submitted tothe National Assembly for consideration.The Committee notes however, that thesystem is not yet operational. In the viewof the Committee, this is a matter for theAuthority.

ii. Section 5 provides that the Minister, onapproval by the National Assembly,appoints the Councillors. The appoint-ment of the Councillors by the Minister is

discussed in greater detail later in thischapter.

iii. Section 10 provides that the chairpersonand Councillors are paid such remunera-tion and allowances and receive suchbenefits as the Minister may determinewith the concurrence of the Minister ofFinance.

iv. In terms of section 14A(2), the Authoritymay appoint experts to assist it in per-forming its functions. However, wherethe expert is not a citizen or permanentresident, the Authority must seek theMinister’s approval before appointingsuch expert.

v. Section 15 states that, in addition tomonies appropriated from Parliament,the Authority may also receive moneydetermined in any other manner as maybe agreed between the Minister and theMinister of Finance and approved byCabinet. The Authority has made propos-als on the issue of self-funding. These arediscussed in greater detail later in thischapter.

f) The Committee is of the view that the pow-ers that the legislation gives to the Minister,as set out above, may negatively affect theindependence of the Authority from theExecutive and should, therefore, be revised.

g) The Committee is convinced of the necessi-ty for the existence of an independent reg-ulator for both the protection of free speechand the economic development of the sec-tor. In particular, the Committee highlightsthe importance of an independent regulatorfor broadcasting as a key construct ofdemocracy. Furthermore, markets where


monopolies or, as is the case in South Africa,duopolies continue to exist require that theregulator be vigilant in monitoring thebehaviour of the incumbent(s) with regardto possible overcharging and denial of fairaccess to rivals. In South Africa, despitesome liberalisation of the telecommunica-tions market, the state has retained signifi-cant shareholdings in the communicationssector.

h) In its supplementary submission to theCommittee, the Authority points to thenecessity for competition within the com-munications sector. A competitive communi-cations environment is regarded as being afundamental enabler of economic growth inboth emerging and developed markets. Theliberalisation of our communications sector,which is accompanied by a rapidly increas-ing range of services and stakeholders,requires a sophisticated and independentregulator to ensure maximum benefits toour society.


a) As discussed above, in terms of its constitu-tional and legal mandate, the Authority’sobjects are to regulate broadcasting in thepublic interest and to ensure fairness and adiversity of views broadly representingSouth African society, as required by section192 of the Constitution, as well as the regu-lation of electronic communications, whichhas now overtaken broadcasting andtelecommunications, and postal matters.

b) The Committee notes that the Authority’smandate is extremely broad. The Committeeunderstands that the increased scope ofresponsibilities that accompany the passing

of the Electronic Communications Act willhave implications for the Authority’s organi-sational structure and processes, as well asits workload.

c) The Committee finds the Authority’s under-standing of its functions adequate.

i. It was put to the Committee that the cur-rent high prices within the telecommuni-cations sector are indicative of systemicproblems relating to a lack of competi-tion.

57

This is a serious concern as itspeaks to the Authority’s core mandate,which is to regulate the communicationssector in the public interest and to ensurefair and diverse access to, and provisionof, services. High prices prevent access toa wide range of services, effectively bar-ring, or creating unequal opportunitiesfor, access to the knowledge economythat underpins modern life.

ii. The Committee notes that the Authorityis unique amongst the Chapter 9 andassociated institutions as it is the onlyone that issues licenses. The Committeeconsiders this to be a critical function, asit has great potential for corruption.

3.3. APPOINTMENTS

a) In terms of the Independent Communi-cations Authority of South Africa Act, asamended, the Minister appoints theChairperson and eight Councillors upon theapproval of the National Assembly. Theappointment process must encompass thefollowing principles: public participation inthe nomination process; transparency andopenness; and the publication of the short-list for comment. The procedure for theappointment of Councillors is as follows:


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57 Gillwald, A. 2007.

i. The National Assembly must submit a listto the Minister that is one –and-a-halftimes as long as the required number ofappointees. Technical and sectoralexperts may assist the National Assemblyin the selection, evaluation and appoint-ment processes.

ii. The Minister must then recommend tothe National Assembly the persons he orshe proposes to appoint from the list sub-mitted. The National Assembly mayrequest that the Minister reconsider if it isnot satisfied with the Minister’s selectionof appointees measured against thequalifications listed in the amended leg-islation. The Committee notes that,beyond requiring that the Minister recon-sider his or her selection of appointees,the legislation is silent as to what shouldhappen if the Minister and the NationalAssembly disagree on the Minister’sselection of appointees.

b) In order to be considered as suitable candi-dates for appointment, Councillors must bepersons who are committed to fairness,freedom of expression, openness andaccountability and when viewed collectivelyare representative of a broad section of thepopulation. Councillors must possess suit-able qualifications, expertise and experiencein a very wide range of fields that include,among others, broadcasting, electronic com-munications, postal policy or operations,public policy development, electronic engi-neering, law, marketing, journalism, enter-tainment, education, economics, finance orany other relevant expertise or qualifica-tions.

c) The Chairperson is appointed for a renew-able period of five years. Other Councillors

are appointed for a term of four years,renewable for a further term. TheChairperson and all Councillors are appoint-ed on a full-time basis, to the exclusion ofany other remunerative employment, occu-pation or office.

d) The Committee learnt that highly paid, per-sonal technical advisers assist eachCouncillor. This is the only institution underreview that has such an arrangement. TheCommittee finds the appointment of thesetechnical advisers both unusual and costly.

e) The Committee notes the recent decision toincrease the number of Councillors to nine.This is not only in contrast to the internation-al trend to reduce the size of regulatory bod-ies as the sector matures, but is also costly,and inhibits rather than enhances speedydecision-making. The Committee under-stands that the Authority had previouslymade submissions requesting that the num-ber of Councillors be reduced but its propos-als were not accepted by Parliament at thetime. However, the Committee understandsthat there is a division of functions betweenCouncillors and that, therefore, a degree ofexpertise is required. The Committee isunable to decide in this very technical areawhether there should be five, seven or eveneleven Councillors. While the view of theAuthority is important, it seems that thenature of the Authority will determine itscomposition, and that any changes must beaccompanied by greater consultation.

f) The Committee highlights that until nowthere has not been a systematic study of thevarious, and vastly divergent, appointmentprocedures that are applicable to theChapter 9 and associated institutions. Theappointment of Councillors to the Authority’s


Council illustrates once more the lack of uni-formity and consistency when selecting andappointing office-bearers. While theCommittee acknowledges that a “one sizefits all” approach is inappropriate, theCommittee notes that, apart from the PanAfrican Language Board, this is the onlyinstitution under review in respect of whichthe Minister and not the President appointsoffice-bearers. The Committee is dissatisfiedwith the extent of the Minister’s involve-ment in the appointment of Councillors asthis may create a perception that theAuthority is not an independent institution.


a) As part of its functions as regulator theAuthority must interact with the public invarious ways, including conducting publichearings on licensing, regulation and policymatters. The Authority also uses mediareleases and interviews, the website andcorporate brochures as the main forms ofcommunication to inform the public of theAuthority’s regulatory activities. TheAuthority receives public enquiries throughan e-mail system. The Committee com-mends the Authority on its public participa-tion efforts but highlights the need for a sys-tematic and coherent public awareness pro-gramme and communications policy andstrategy, especially in relation to consumercomplaints against operators.

b) The Committee notes the absence of a for-mal mechanism to deal with complaints bythe public regarding the Authority’s work orthe failure to attend to issues. This is unac-ceptable. The Authority does have a policythat, where a complainant has exhaustedthe avenues of complaint within theAuthority, he or she will be directed to thePublic Protector.


a) The Committee notes that the Authority isaccountable to the National Assembly andappears before the Portfolio Committee onCommunications on average twice a year.The Independent Communications Authorityof South Africa Act, as amended, requiresthat the Authority present the Minister withits annual report, which is then tabled inParliament. The Committee is of the viewthat this can create the perception that theAuthority lacks independence, therebyundermining its credibility.

b) The Committee feels that there is need forstronger and more effective interactionbetween the Authority and the portfoliocommittee. In this regard, attention is drawnto the Committee’s recommendations tostrengthen the role of portfolio committeeswhen exercising oversight of the institutionsunder review.

c) More specifically concerning oversight of theAuthority, the Committee is of the view thatthe issue of technical expertise for member-ship of a parliamentary committee of thisnature has not received sufficient attention.If robust interaction is to occur between theportfolio committee and the Authority,members of the portfolio committee mustpossess a certain degree of technical com-petence in, or knowledge of, the field. Thisis of particular importance in light of theportfolio committee’s role in the appoint-ment of Councillors and the assessment ofperformance.

d) The Committee notes that the provision thatpermits the appointment of a panel of techni-cal and sectoral experts to assist the portfoliocommittee in the appointments process is notmandatory, and, in fact, this provision was not


C H A P T E R 1 3

made use of in the first cycle of appointmentsunder the amended legislation.


a) The Authority contended that any overlapbetween it and the institutions under reviewis of a general nature insofar as theAuthority’s work is aimed at promotingdemocracy and ensuring freedom of expres-sion.

b) As is the general case for all the institutionsunder review, the Committee finds thatthere is no formal collaborative relationshipbetween the Authority and any of theChapter 9 or associated institutions. TheCommittee makes specific recommenda-tions for the collaboration and co-operationof the institutions under review.


a) The Committee notes that in its submissionthe Authority stated that it maintains a co-operative and effective relationship with theMinister of Communications on all matterspertaining to policy and implementation. Asystem of minuted, bilateral meetingsensures overall co-ordination between poli-cy and implementation activities of both.

b) Although the Authority is constitutionallyand legally independent, it described itselfas being “connected” to the executive armof government through the Ministry ofCommunications. The Ministry plays a sup-portive role on matters of policy, strategicalignment, and budgeting. As previouslymentioned, the Authority also submits itsannual report to Parliament via the Ministerof Communications.


a) The Committee accepts that a lack of capac-ity, experience, resources and understandingof the sector has contributed to theAuthority’s difficulties.

58

The Committee haslearnt that the Authority has had to resort tothe use of consultants to compensate for theshortage of skills available to it. Unfortu-nately the use of consultants often fails totake into account the nature of the SouthAfrican market and the social needs of adeveloping nation, and has failed to transferthe skills necessary for implementation.

b) The Committee finds that the difficultiesexperienced by the Authority with therecruitment and retention of staff is a matterfor serious concern. The Committee acceptsthat the Authority’s inability to pay market-related salaries is a contributory factor, par-ticularly in an industry that offers lucrativeand competitive packages. In this regard, theCommittee highlights the need for a staffrecruitment and retention strategy.

c) The Committee received a submission thatperceptions of the Authority’s lack of inde-pendence and inability to regulate effective-ly undermine its credibility. In a self-perpet-uating cycle, such perceptions dissuadethose who have expertise and politicalweight from availing themselves forappointment to the Authority or its secre-tariat, compounding the capacity constraintsof the Authority.

d) The Committee understands that theIndependent Communications Authority ofSouth Africa Act, as amended, requires thata substantial number of regulations be draft-ed (one submission put the figure at no less


58 Gillwald, A. Submission on the Independent Communications Authority of South Africa (ICASA), 2007. p 9

than 200 regulations), either in the form ofentirely new regulations, or existing regula-tions that must be reformulated to meet therequirements of the Electronic Communic-ations Act. Furthermore, the Committeelearnt that the Authority has been handedadditional responsibilities (for example, it isnow the regulator for postal services) butthese have not been accompanied by addi-tional budget allocations, which is placingthe already under-resourced Authority underincreased financial strain.

e) The Committee finds that internal conflictand tensions have undermined theAuthority’s operational effectiveness andefficiency. The Committee notes the eventssurrounding the suspension of theAuthority’s Chief Executive Officer in January2006 that left the Authority without a ChiefExecutive Officer for approximately eightmonths. The Committee finds this to be anextraordinary way of operating, especiallysince the Chief Executive Officer subse-quently resigned without any disciplinaryprocedures being conducted.

f) The Authority states that the remunerationthat Councillors receive is not competitive.In this regard, the Committee notes thewide discrepancies that exist between thevarious institutions regarding the determina-tion of remuneration, benefits and condi-tions of service for office-bearers. TheCommittee makes general recommenda-tions in this regard in Chapter 2 of thisreport.

g) The Committee notes that the Authority hasadopted a code of conduct that sets out thestandards to promote and ensure theintegrity and good conduct of itsChairperson, Councillors and Chief Executive

Officer. In addition, the Chairperson,Councillors and Chief Executive Officer arerequired to declare all financial interests.These are recorded in a register, which haspublic and confidential sections. Section 12of the Independent CommunicationsAuthority of South Africa Act, as amended,also prohibits Councillors from participatingin meetings or hearings in which they havean interest. General recommendations aremade in this regard in Chapter 2 of thisreport.

h) The Committee has learnt that there is agreat deal of litigation that involves theAuthority. This is cumbersome, costly andtime-consuming. The Committee is of theview that while this is not unusual in thecommunications industry internationally,mechanisms should be established to avertlitigation through arbitration, for example.


a) Adequate funding is a prerequisite for aneffective and independent regulatoryagency. From the evidence received, theCommittee is of the view that theAuthority’s budget is inadequate for the effi-cient and effective performance of its oper-ations, particularly in light of the many addi-tional responsibilities that accompany theenactment of the Electronic CommunicationsAct.

b) The Authority’s transformation from anorganisation that is technology- and service-based to one that is focused on convergencerequires substantial funding. Some of theneeds that have been identified include acomplete redesign of the existing regula-tions, as well as the re-organisation of theAuthority’s internal structuring involving,


C H A P T E R 1 3

amongst others, a skills audit for the entirestaff, developing a comprehensive humanresources database, consolidating enforce-ment-monitoring functions, and robust stafftraining on the implications of convergence.This transformation process may also requireadditional external expertise and support.

c) The Committee heard that the Authority’ssources of income are the funds allocated toit by Parliament and interest earned on cashbalances. The Authority’s budget allocationtakes the form of direct transfers from theDepartment of Communications. There aresubstantial increases in the allocations interms of the Medium Term ExpenditureFramework. However, the Committee notesthat in years past the Authority’s operatingexpenses generally exceeded its incomefrom government appropriations. Therefore,with the exception of 2003/04, theAuthority has shown a deficit in each of thefinancial years under consideration, as isdemonstrated in the Table below.

Table 1: Income and Expenditure: 2003/04 –2009/10

59

d) At present all revenues from licence feescollected by the Authority are transferred tothe National Revenue Fund. These are con-siderable amounts: In 2005/06 theAuthority collected R1 486 million; while in2004/05 it collected R1 256 million.

e) The Committee investigated the possibilityof alternative funding models, including thesourcing of funds over and above the parlia-mentary allocation. The Committee learntthat the Authority is developing a self-fund-ing model that is based on the concept thata percentage of the licence fee revenue col-lected be retained to fund the Authority’soperations, thereby eliminating its relianceon government funding. Initially, theCommittee rejected this proposal, beingpersuaded, amongst others, by the fact thatthere are too many uncertainties (theamounts collected may vary from one yearto the next), and the potential that this maywell result in the inflation of licensing feescreating additional barriers to market entry.

f) The Authority subsequently made a supple-mentary submission on its proposal to devel-


59 National Treasury (2007), Estimates of National Expenditure and the Authorities submission to the Committee

R ‘000 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10

Grant available 123 954 128 633 150 489 199 738 222 475 242 272 263 607

Expenditure 116 949 153 262 178 605

Surplus/(Deficit) 7 005 (24 628) (11 382)

op a self-funding model in terms of whichthe Authority would fund its operations byretaining a percentage of the licence fee rev-enue that it collects, thereby eliminating itsreliance on government funding.

g) As noted previously, the Authority collectsapproximately R1 billion in fees from indus-try players, transferring all collected fees tothe National Revenue Fund. The current feestructure of the South African communica-tions sector varies according to the technolo-gies and services offered, and are a combi-nation of regulatory fees and additional feesbased on market activity. The Authority’sfunding proposal identifies four potentialfunding models for national regulators, all ofwhich have certain advantages and disad-vantages:

i. The first option is that of governmentgrants. This is the present budgetaryarrangement and has the advantage ofproviding the most predictable cash flowsolution. However, this option does notallow for financial flexibility in an envi-ronment that is characterised by rapidchange, and there is also the danger thatthe amount allocated may be insuffi-cient. Furthermore, there is significantrisk of the regulator becoming embroiledin political debate, which could prevent itfrom pursuing its independent mandate,thereby undermining its credibility andlegitimacy.

ii. The second option is that of regulatoryfees. The funding of regulators entirelyfrom regulatory fees would dissolve thetension between market developmentsand political interests. Potential disadvan-tages are the possibility of high fluctua-tions in cash flow and the erection of

barriers to market entry due to excessivefees. Both of these disadvantages can beaddressed by legislation.

iii. A third option is funding from marketactivities. While this option is the mostmarket-friendly and the regulator itselfhas a vested interest in maintaining aprosperous sector, the major disadvan-tage of this option is difficulties of imple-menting while respecting some basicprinciples of regulation so that only rev-enues from regulated activities are sub-ject to regulatory charges.

iv. A hybrid model incorporates a number ofthese models.

h) The Authority identified six criteria which itbelieves require consideration in order toassess whether a funding option will pro-vide it with sufficient resources in the longterm, namely political independence, finan-cial flexibility, income stability, ease ofimplementation, incentives towards pro-market regulation and credibility amongmarket players. Taking all of these intoaccount, the Authority concludes that it willclearly benefit from a government-inde-pendent hybrid model of regulatory andmarket-activity-based fees.

i) Such a model would not only significantlyenhance the Authority’s credibility withinthe sector, but it should also comfortablyprovide sufficient funding of its activities.Furthermore, the model would be easy toimplement as the existing fee collection sys-tem could stay in place unaltered. The onlychange would be that the Authority wouldretain a portion of collected fees while con-tinuing to transfer the remaining funds tothe National Revenue Fund. There would


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also be a savings on administrative costsassociated with the government grants.

j) The Committee notes that the Authority stat-ed that it would need to retain approximate-ly 30% of the fees collected to replace thepresent direct government funding. TheAuthority did warn, however, that sufficientfunding through a percentage of collectedfees could only be ensured if the overall feecollection base does not change significantly.

k) A concern that is frequently raised is theaccumulation of excess funds. Severaloptions are available to address this concern.

l) The Committee is persuaded by theAuthority’s submission on alternative fund-ing models and recommends that it be per-mitted to retain a portion of the revenue itcollects, the precise details of the fundingmodel to be determined after further con-sultation with the relevant stakeholders.


a) The Authority is a very important body toSouth Africa. The Committee finds the exis-tence of an independent regulator necessaryfor the protection of free speech, as well asthe creation of a stable industrial and invest-ment environment for the development ofthis strategic sector in the information age.

60

However, the perception that the Authoritylacks independence is potentially undermin-ing of its credibility and, therefore, its legiti-macy. This is undesirable.

b) The Committee considers the presentappointment procedures for Councillors to

be inappropriate. General recommendationsare made to enhance consistency, coherenceand accountability in Chapter 2 of thisreport, while specific recommendations areincluded below.

c) The efficiency and effectiveness of the insti-tution could be enhanced if certain institu-tional arrangements were addressed. Theseare elaborated in the recommendationsbelow.

d) The parliamentary mechanisms for oversightof the Authority’s work are inadequate. Inaddition to recommendations that arespecifically applicable to the Authority, theCommittee makes general recommenda-tions in Chapter 2 of this report for theimprovement of the oversight and account-ability mechanisms that would apply to allthe Chapter 9 and associated institutionsunder review.

e) The budget process and funding model ofthe Authority adversely affects its accounta-bility and independence. The Committeemakes general recommendations in Chapter2 of this report for the improvement of thebudget process that would apply to all theChapter 9 and associated institutionsreviewed. In addition, specific recommen-dations are made concerning the Authority’sfunding below.

5. Recommendations

The Committee recommends that -

a) The appointment procedures for Councillorsbe reviewed to support and assert the


60 Gillwald, A. 2007. p 3

Authority’s independence further. TheCommittee makes general proposals in thisregard in Chapter 2 of this report. Morespecifically regarding appointments to theAuthority, the Committee recommends thatthe legislation be amended as follows:

i. The President, on the recommendation ofthe National Assembly, should appointthe Councillors.

ii. Regarding qualifications of Councillors forappointment, at least a third of thoseappointed should have technical expert-ise. This will obviate the need for tech-nical advisers.

iii. The provision relating to the performancemanagement system should be revisedto remove the role of the Minister in thisregard.

b) The Authority’s funding model should berevised on the basis as indicated in para-graph 3.9(h) above in order to support andenhance its independence and effective-ness.

c) The legislative framework envisaged interms of section 219(5) of the Constitutionto determine the salaries, allowances andbenefits of judges, the Public Protector, theAuditor-General, and members of any com-mission provided for in the Constitutionshould be developed. The Committee makesproposals in this regard in Chapter 2 of thisreport.

d) Certain institutional governance matters,such as a conflict-resolution policy and

mechanisms, staff attraction and retentionstrategies and the Authority’s governancemodel should be addressed to improve itsefficiency and effectiveness.

e) The directorships, partnerships and consul-tancies of Councillors and senior officialsshould be disclosed in the annual report. Inaddition, the disclosures of pecuniary andother interests of Councillors and staff mem-bers should be kept available in a registerand an indication should be given in theannual report of where such information isavailable. General recommendations in thisregard are made in Chapter 2 of this report.

f) Collaborative relations with relevant Chapter9 and related constitutional bodies shouldbe established. The Committee makes gen-eral recommendations in this regard inChapter 2 of this report.

g) Mechanisms to improve the relationship andinteraction between Parliament and theAuthority should be determined.Consideration should be given to ensuringthat members appointed to the PortfolioCommittee on Communications have therelevant technical competence in the field.General recommendations are made inChapter 2 of this report to strengthen portfo-lio committees in exercising oversight of theinstitutions under review. The role of theproposed unit in the Office of the Speakerdiscussed in Chapter 2 of this report shouldalso be considered in this regard.


C H A P T E R 1 3

CHAPTER 14

The Committee, having conducted this firstreview, believes that it is correct to protectthese bodies through our Constitution as wasdone in 1993 and 1996 because this insulatesthem from pressure, cajolement or undue influ-ence.

The Committee considers this review to be ahistoric task of the National Assembly. Itreflects on the strength of the democratic orderthat the National Assembly considered it appro-priate to undertake this assessment of whatthis report already describes as uniquely posi-tioned bodies, which are not paralleled any-where else in the world.

The Committee is satisfied that, broadly speak-ing, the bodies have come up to the expecta-tions laid down in the terms of reference issuedby the National Assembly.

Whether all of these bodies should be includedin Chapter 9 of the Constitution is a matter theCommittee has given thought to. These bodieswere set up when democrats felt that thereshould be special bodies to protect rights. Theexistence of these bodies was conditioned bytime and context. Since then that context haschanged. Democracy in our country now hasfirmer roots than in 1994 and the instrumentsof governance enthusiastically subscribe to theBill of Rights.

The Committee therefore addressed this issue,but did so specifically in the context ofstrengthening the authority and functioning ofwhat we call, broadly, Chapter 9 institutionswithin the paradigm of an entrenched cultureof human rights. All the matters raised in thisreport and the recommendations put beforethe National Assembly should be considered inthis context. It is very important that theNational Assembly gives serious consideration

to the recommendations so that the work ofthese institutions is strengthened and thedefects removed.

The Committee reiterates that it is vital toensure the distinctiveness of the bodies as indi-cated in the report and their independent sta-tus, but in the area of human rights to give cre-dence to interrelatedness. The Committeetherefore proposes a cohesive, strong and com-prehensive umbrella human rights body. TheNational Assembly and the Executive shouldgive priority to this central recommendation.

Acknowledgements

The Committee could not have completed itswork without the active participation of theinstitutions themselves, civil society and indi-viduals. The Committee could not respond toall the individual submissions, as some werepersonal grievances to be dealt with else-where.

Members of the Committee have worked onother committees of a similar nature and wouldlike specifically to mention the exceptionalservice rendered by the support staff assignedto this Committee. In particular, the Committeeis grateful to the most senior member of staffassigned to the Committee, Dr. Gabriel, theresearcher, Ms. Silkstone, the secretary, Mr.Philander, and Mr Molukanele of the NationalAssembly Table.

The Committee issues a special word of thanksto Prof De Vos for assistance in drafting thereport and the former Secretary to the NationalAssembly, Mr Hahndiek, for assisting with edit-ing and advice at the end of the reportingprocess.

205CONCLUSION

CHAPTER 14

CONCLUSION

C H A P T E R 1 4

SELECTED CONSTITUTIONAL PROVISIONS: CONSTITUTION OF SOUTH AFRICA, 1996

ANNEXURE 1

Chapter 1 Founding Principles

6. LANGUAGES1. The official languages of the Republic are

Sepedi, Sesotho, Setswana, siSwati,Tshivenda, Xitsonga, Afrikaans, English,isiNdebele, isiXhosa and isiZulu.

2. Recognising the historically diminished useand status of the indigenous languages ofour people, the state must take practical andpositive measures to elevate the status andadvance the use of these languages.

3 (a) The national government and provincial governments may use any particular offi-cial languages for the purposes of gov-ernment, taking into account usage, prac-ticality, expense, regional circumstancesand the balance of the needs and prefer-ences of the population as a whole or inthe province concerned; but the nationalgovernment and each provincial govern-ment must use at least two official lan-guages.

(b) Municipalities must take into account thelanguage usage and preferences of theirresidents.

4. The national government and provincialgovernments, by legislative and othermeasures, must regulate and monitor theiruse of official languages. Without detractingfrom the provisions of subsection (2), allofficial languages must enjoy parity ofesteem and must be treated equitably.

5. A Pan South African Language Board estab-lished by national legislation must-a) promote, and create conditions for, the

development and use of-i. all official languages;ii. the Khoi, Nama and San languages;

andiii. sign language; and

b) promote and ensure respect for-i. all languages commonly used by

communities in South Africa, includingGerman, Greek, Gujarati, Hindi,Portuguese, Tamil, Telegu and Urdu; and

ii. Arabic, Hebrew, Sanskrit and otherlanguages used for religious purposesin South Africa.

Chapter 2 Bill of Rights

38. ENFORCEMENT OF RIGHTSAnyone listed in this section has the right toapproach a competent court, alleging that aright in the Bill of Rights has been infringed orthreatened, and the court may grant appropri-ate relief, including a declaration of rights. Thepersons who may approach a court are-

a) anyone acting in their own interest;b) anyone acting on behalf of another per-

son who cannot act in their own name;c) anyone acting as a member of, or in the

interest of, a group or class of persons;d) anyone acting in the public interest; ande) an association acting in the interest of its

members.

Chapter 3 Co-operativeGovernment

41. PRINCIPLES OF CO-OPERATIVE GOVERNMENT AND INTERGOVERN-MENTAL RELATIONS

1. All spheres of government and all organs ofstate within each sphere must-a) preserve the peace, national unity and

the indivisibility of the Republic;b) secure the well-being of the people of

the Republic;c) provide effective, transparent, account-

able and coherent government for theRepublic as a whole;

d) be loyal to the Constitution, the Republicand its people;

e) respect the constitutional status, institu-

207SELECTED CONSTITUTIONAL PROVISIONS: CONSTITUTION OF SOUTH AFRICA, 1996

ANNEXURE 1

tions, powers and functions of govern-ment in the other spheres;

f) not assume any power or function exceptthose conferred on them in terms of theConstitution;

g) exercise their powers and perform theirfunctions in a manner that does notencroach on the geographical, functionalor institutional integrity of government inanother sphere; and

h) co-operate with one another in mutualtrust and good faith by-i. fostering friendly relations;ii. assisting and supporting one another;iii. informing one another of, and consult-

ing one another on, matters of com-mon interest;

iv. co-ordinating their actions and legisla-tion with one another;

v. adhering to agreed procedures; andvi. avoiding legal proceedings against

one another.2. An Act of Parliament must-

a) establish or provide for structures andinstitutions to promote and facilitateintergovernmental relations; and

b) provide for appropriate mechanisms andprocedures to facilitate settlement ofintergovernmental disputes.

3. An organ of state involved in an intergov-ernmental dispute must make every reason-able effort to settle the dispute by means ofmechanisms and procedures provided forthat purpose, and must exhaust all otherremedies before it approaches a court toresolve the dispute.

4. If a court is not satisfied that the require-ments of subsection (3) have been met, itmay refer a dispute back to the organs ofstate involved.

Chapter 9 State InstitutionsSupporting ConstitutionalDemocracy

181. ESTABLISHMENT AND GOVERNINGPRINCIPLES

1. The following state institutions strengthenconstitutional democracy in the Republic: a) The Public Protector. b) The South African Human Rights

Commission.c) The Commission for the Promotion and

Protection of the Rights of Cultural,Religious and Linguistic Communities.

d) The Commission for Gender Equality. e) The Auditor-General. f) The Electoral Commission.

2. These institutions are independent, and sub-ject only to the Constitution and the law, andthey must be impartial and must exercisetheir powers and perform their functionswithout fear, favour or prejudice.

3. Other organs of state, through legislative andother measures, must assist and protectthese institutions to ensure the independ-ence, impartiality, dignity and effectivenessof these institutions.

4. No person or organ of state may interferewith the functioning of these institutions.

5. These institutions are accountable to theNational Assembly, and must report on theiractivities and the performance of their func-tions to the Assembly at least once a year.

Public Protector (ss 182-183)

182. FUNCTIONS OF PUBLIC PROTECTOR 1. The Public Protector has the power, as regu-

lated by national legislation-a) to investigate any conduct in state affairs,

or in the public administration in anysphere of government, that is alleged orsuspected to be improper or to result inany impropriety or prejudice;


b) to report on that conduct; andc) to take appropriate remedial action.

2. The Public Protector has the additional pow-ers and functions prescribed by national leg-islation.

3. The Public Protector may not investigatecourt decisions.

4. The Public Protector must be accessible to allpersons and communities.

5. An report issued by the Public Protectormust be open to the public unless excep-tional circumstances, to be determined interms of national legislation, require that areport be kept confidential.

183.TENUREThe Public Protector is appointed for a non-renewable period of seven years.

South African Human Rights Commission (s 184)

184.FUNCTIONS OF SOUTH AFRICANHUMAN RIGHTS COMMISSION

1. The South African Human Rights Commissionmust-a) promote respect for human rights and a

culture of human rights;b) promote the protection, development

and attainment of human rights; andc) monitor and assess the observance of

human rights in the Republic.2. The South African Human Rights Commission

has the powers, as regulated by nationallegislation, necessary to perform its func-tions, including the power-a) to investigate and to report on the obser-

vance of human rights;b) to take steps to secure appropriate

redress where human rights have beenviolated;

c) to carry out research; and d) to educate.

3. Each year, the South African Human Rights

Commission must require relevant organs ofstate to provide the Commission with infor-mation on the measures that they havetaken towards the realisation of the rights inthe Bill of Rights concerning housing, healthcare, food, water, social security, educationand the environment.

4. The South African Human Rights Commissionhas the additional powers and functions pre-scribed by national legislation.

Commission for the Promotion andProtection of the Rights of Cultural,Religious and Linguistic Communities (ss 185-186)

185.FUNCTIONS OF COMMISSION1. The primary objects of the Commission for

the Promotion and Protection of the Rightsof Cultural, Religious and LinguisticCommunities are-a) to promote respect for the rights of cul-

tural, religious and linguistic communi-ties;

b) to promote and develop peace, friend-ship, humanity, tolerance and nationalunity among cultural, religious and lin-guistic communities, on the basis ofequality, non-discrimination and freeassociation; and

c) to recommend the establishment orrecognition, in accordance with nationallegislation, of a cultural or other councilor councils for a community or communi-ties in South Africa.

2. The Commission has the power, as regulatedby national legislation, necessary to achieveits primary objects, including the power tomonitor, investigate, research, educate,lobby, advise and report on issues concern-ing the rights of cultural, religious and lin-guistic communities.

3. The Commission may report any matterwhich falls within its powers and functions


ANNEXURE 1

to the South African Human Rights Commis-sion for investigation.

4. The Commission has the additional powers andfunctions prescribed by national legislation.

186.COMPOSITION OF COMMISSION1. The number of members of the Commission

for the Promotion and Protection of theRights of Cultural, Religious and LinguisticCommunities and their appointment andterms of office must be prescribed bynational legislation.

2. The composition of the Commission must-a) be broadly representative of the main

cultural, religious and linguistic communi-ties in South Africa; and

b) broadly reflect the gender composition ofSouth Africa.

Commission for Gender Equality (s 187)

187.FUNCTIONS OF COMMISSION FORGENDER EQUALITY

1. The Commission for Gender Equality mustpromote respect for gender equality and theprotection, development and attainment ofgender equality.

2. The Commission for Gender Equality has thepower, as regulated by national legislation,necessary to perform its functions, includingthe power to monitor, investigate, research,educate, lobby, advise and report on issuesconcerning gender equality.

3. The Commission for Gender Equality has theadditional powers and functions prescribedby national legislation.

Auditor-General (ss 188-189)

188.FUNCTIONS OF AUDITOR-GENERAL1. The Auditor-General must audit and report on

the accounts, financial statements andfinancial management of-a) all national and provincial state depart-

ments and administrations;

b) all municipalities; andc) any other institution or accounting entity

required by national or provincial legisla-tion to be audited by the Auditor-General.

2. In addition to the duties prescribed in sub-section (1), and subject to any legislation,the Auditor-General may audit and report onthe accounts, financial statements andfinancial management of- a) any institution funded from the National

Revenue Fund or a Provincial RevenueFund or by a municipality; or

b) any institution that is authorised in termsof any law to receive money for a publicpurpose.

3. The Auditor-General must submit auditreports to any legislature that has a directinterest in the audit, and to any otherauthority prescribed by national legislation.All reports must be made public.

4. The Auditor-General has the additional powersand functions prescribed by national legislation.

189.TENUREThe Auditor-General must be appointed for afixed, non-renewable term of between five andten years.

Electoral Commission (ss 190-191)

190. FUNCTIONS OF ELECTORALCOMMISSION

1. The Electoral Commission must- a) manage elections of national, provincial

and municipal legislative bodies in accor-dance with national legislation;

b) ensure that those elections are free andfair; and

c) declare the results of those electionswithin a period that must be prescribedby national legislation and that is as shortas reasonably possible.

2. The Electoral Commission has the additionalpowers and functions prescribed by nationallegislation.


191.COMPOSITION OF ELECTORALCOMMISSION

The Electoral Commission must be composed ofat least three persons. The number of membersand their terms of office must be prescribed bynational legislation.

Independent Authority to RegulateBroadcasting (s 192)

192.BROADCASTING AUTHORITYNational legislation must establish an inde-pendent authority to regulate broadcasting inthe public interest, and to ensure fairness and adiversity of views broadly representing SouthAfrican society.

General Provisions (ss 193-194)

193.APPOINTMENTS1. The Public Protector and the members of

any Commission established by this Chaptermust be women or men who- a) are South African citizens; b) are fit and proper persons to hold the

particular office; and c) comply with any other requirements pre-

scribed by national legislation.2. The need for a Commission established by

this Chapter to reflect broadly the race andgender composition of South Africa must beconsidered when members are appointed.

3. The Auditor-General must be a woman or aman who is a South African citizen and a fitand proper person to hold that office.Specialised knowledge of, or experience in,auditing, state finances and public adminis-tration must be given due regard in appoint-ing the Auditor-General.

4. The President, on the recommendation ofthe National Assembly, must appoint thePublic Protector, the Auditor-General and themembers of-a) the South African Human Rights

Commission;

b) the Commission for Gender Equality; and c) the Electoral Commission.

5. The National Assembly must recommendpersons- a) nominated by a committee of the

Assembly proportionally composed ofmembers of all parties represented in theAssembly; and

b) approved by the Assembly by a resolu-tion adopted with a supporting vote-i. of at least 60 per cent of the members

of the Assembly, if the recommenda-tion concerns the appointment of thePublic Protector or the Auditor-General; or

ii. of a majority of the members of theAssembly, if the recommendationconcerns the appointment of a mem-ber of a Commission.

6. The involvement of civil society in the rec-ommendation process may be provided foras envisaged in section 59 (1) (a).

194.REMOVAL FROM OFFICE1. The Public Protector, the Auditor-General or

a member of a Commission established bythis Chapter may be removed from officeonly on- a) the ground of misconduct, incapacity or

incompetence; b) a finding to that effect by a committee of

the National Assembly; andc) the adoption by the Assembly of a reso-

lution calling for that person’s removalfrom office

2. A resolution of the National Assembly con-cerning the removal from office of-a) the Public Protector or the Auditor-

General must be adopted with a support-ing vote of at least two thirds of themembers of the Assembly; or

b) a member of a Commission must beadopted with a supporting vote of amajority of the members of theAssembly.


ANNEXURE 1

3. The President-a) may suspend a person from office at any

time after the start of the proceedings ofa committee of the National Assemblyfor the removal of that person; and

b) must remove a person from office uponadoption by the Assembly of the resolu-tion calling for that person’s removal.

Chapter 10 Public Administration

195.BASIC VALUES AND PRINCIPLES GOV-ERNING PUBLIC ADMINISTRATION

1. Public administration must be governed bythe democratic values and principlesenshrined in the Constitution, including thefollowing principles:a) A high standard of professional ethics

must be promoted and maintained.b) Efficient, economic and effective use of

resources must be promoted.c) Public administration must be develop-

ment-oriented.d) Services must be provided impartially,

fairly, equitably and without bias.e) People’s needs must be responded to,

and the public must be encouraged toparticipate in policy-making.

f) Public administration must be account-able.

g) Transparency must be fostered by provid-ing the public with timely, accessible andaccurate information.

h) Good human-resource management andcareer-development practices, to max-imise human potential, must be cultivated.

i) Public administration must be broadlyrepresentative of the South African peo-ple, with employment and personnelmanagement practices based on ability,objectivity, fairness, and the need toredress the imbalances of the past toachieve broad representation.

2. The above principles apply to-

a) administration in every sphere of govern-ment;

b) organs of state; and c) public enterprises.

3. National legislation must ensure the promo-tion of the values and principles listed insubsection (1).

4. The appointment in public administration ofa number of persons on policy considera-tions is not precluded, but national legisla-tion must regulate these appointments inthe public service.

5. Legislation regulating public administrationmay differentiate between different sectors,administrations or institutions.

6. The nature and functions of different sectors,administrations or institutions of publicadministration are relevant factors to betaken into account in legislation regulatingpublic administration.

196.PUBLIC SERVICE COMMISSION1. There is a single Public Service Commission

for the Republic.2. The Commission is independent and must

be impartial, and must exercise its powersand perform its functions without fear,favour or prejudice in the interest of themaintenance of effective and efficient pub-lic administration and a high standard ofprofessional ethics in the public service. TheCommission must be regulated by nationallegislation.

3. Other organs of state, through legislativeand other measures, must assist and protectthe Commission to ensure the independ-ence, impartiality, dignity and effectivenessof the Commission. No person or organ ofstate may interfere with the functioning ofthe Commission.


4. The powers and functions of theCommission are-a) to promote the values and principles set

out in section 195, throughout the publicservice;

b) to investigate, monitor and evaluate theorganisation and administration, and thepersonnel practices, of the public service;

c) to propose measures to ensure effectiveand efficient performance within thepublic service;

d) to give directions aimed at ensuring thatpersonnel procedures relating to recruit-ment, transfers, promotions and dis-missals comply with the values and prin-ciples set out in section 195;

e) to report in respect of its activities andthe performance of its functions, includ-ing any finding it may make and direc-tions and advice it may give, and to pro-vide an evaluation of the extent to whichthe values and principles set out in sec-tion 195 are complied with; and

f) either of its own accord or on receipt ofany complaint- i. to investigate and evaluate the appli-

cation of personnel and public admin-istration practices, and to report to therelevant executive authority and legis-lature;

ii. to investigate grievances of employ-ees in the public service concerningofficial acts or omissions, and recom-mend appropriate remedies;

iii. to monitor and investigate adherenceto applicable procedures in the publicservice; and

iv. to advise national and provincialorgans of state regarding personnelpractices in the public service, includ-ing those relating to the recruitment,appointment, transfer, discharge andother aspects of the careers of

employees in the public service.g) to exercise or perform the additional

powers or functions prescribed by an Actof Parliament.

5. The Commission is accountable to theNational Assembly.

6. The Commission must report at least once ayear in terms of subsection (4) (e)-a) to the National Assembly; andb) in respect of its activities in a province, to

the legislature of that province.7. The Commission has the following 14 com-

missioners appointed by the President:a) Five commissioners approved by the

National Assembly in accordance withsubsection (8) (a); and

b) one commissioner for each provincenominated by the Premier of theprovince in accordance with subsection(8) (b).

8. a) A commissioner appointed in terms ofsubsection (7) (a) must be-i. recommended by a committee of the

National Assembly that is proportion-ally composed of members of all par-ties represented in the Assembly; and

ii. approved by the Assembly by a reso-lution adopted with a supporting voteof a majority of its members.

b) A commissioner nominated by thePremier of a province must be- i. recommended by a committee of the

provincial legislature that is propor-tionally composed of members of allparties represented in the legislature;and

ii. approved by the legislature by a reso-lution adopted with a supporting voteof a majority of its members.

9. An Act of Parliament must regulate the pro-cedure for the appointment of commission-ers.

10.A commissioner is appointed for a term of


ANNEXURE 1

five years, which is renewable for one addi-tional term only, and must be a woman or aman who is-a) a South African citizen; andb) a fit and proper person with knowledge

of, or experience in, administration, man-agement or the provision of public serv-ices.

11.A commissioner may be removed fromoffice only on-a) the ground of misconduct, incapacity or

incompetence;b) a finding to that effect by a committee of

the National Assembly or, in the case ofa commissioner nominated by thePremier of a province, by a committee ofthe legislature of that province; and

c) the adoption by the Assembly or theprovincial legislature concerned, of a res-olution with a supporting vote of amajority of its members calling for thecommissioner’s removal from office.

12. The President must remove the relevantcommissioner from office upon-a) the adoption by the Assembly of a reso-

lution calling for that commissioner’sremoval; or

b) written notification by the Premier thatthe provincial legislature has adopted aresolution calling for that commissioner’sremoval.

13. Commissioners referred to in subsection (7)(b) may exercise the powers and performthe functions of the Commission in theirprovinces as prescribed by national legisla-tion.

Chapter 13 Finance

214.EQUITABLE SHARES AND ALLOCATIONS OF REVENUE

1. An Act of Parliament must provide for- a) the equitable division of revenue raised

nationally among the national, provincialand local spheres of government;

b) the determination of each province’sequitable share of the provincial share ofthat revenue; and

c) any other allocations to provinces, localgovernment or municipalities from thenational government’s share of that rev-enue, and any conditions on which thoseallocations may be made.

2. The Act referred to in subsection (1) may beenacted only after the provincial govern-ments, organised local government and theFinancial and Fiscal Commission have beenconsulted, and any recommendations of theCommission have been considered, andmust take into account-a) the national interest; b) any provision that must be made in

respect of the national debt and othernational obligations;

c) the needs and interests of the nationalgovernment, determined by objectivecriteria;

d) the need to ensure that the provincesand municipalities are able to providebasic services and perform the functionsallocated to them;

e) the fiscal capacity and efficiency of theprovinces and municipalities;

f) developmental and other needs ofprovinces, local government and munici-palities;

g) economic disparities within and amongthe provinces;

h) obligations of the provinces and munici-palities in terms of national legislation;

i) the desirability of stable and predictable


allocations of revenue shares; andj) the need for flexibility in responding to

emergencies or other temporary needs,and other factors based on similar objec-tive criteria.

219.REMUNERATION OF PERSONS HOLD-ING PUBLIC OFFICE

1. An Act of Parliament must establish aframework for determining-a) the salaries, allowances and benefits of

members of the National Assembly, per-manent delegates to the National Councilof Provinces, members of the Cabinet,Deputy Ministers, traditional leaders andmembers of any councils of traditionalleaders; and

b) the upper limit of salaries, allowances orbenefits of members of provincial legisla-tures, members of Executive Councils andmembers of Municipal Councils of the dif-ferent categories.

2. National legislation must establish an inde-pendent commission to make recommenda-tions concerning the salaries, allowancesand benefits referred to in subsection.

3. Parliament may pass the legislation referredto in subsection (1) only after consideringany recommendations of the commissionestablished in terms of subsection (2).

4. The national executive, a provincial execu-tive, a municipality or any other relevantauthority may implement the national legis-lation referred to in subsection (1) only afterconsidering any recommendations of thecommission established in terms of subsec-tion (2).

5. National legislation must establish frame-works for determining the salaries,allowances and benefits of judges, thePublic Protector, the Auditor-General, andmembers of any commission provided for inthe Constitution, including the broadcastingauthority referred to in section 192.

Financial and Fiscal Commission (ss 220-222)

220.ESTABLISHMENT AND FUNCTIONS1. There is a Financial and Fiscal Commission

for the Republic which makes recommenda-tions envisaged in this Chapter, or in nation-al legislation, to Parliament, provincial legis-latures and any other authorities deter-mined by national legislation.

2. The Commission is independent and subjectonly to the Constitution and the law, andmust be impartial.

3. The Commission must function in terms ofan Act of Parliament and, in performing itsfunctions, must consider all relevant factors,including those listed in section 214 (2).

221.APPOINTMENT AND TENURE OFMEMBERS

1. The Commission consists of the followingwomen and men appointed by thePresident, as head of the national executive:a) A chairperson and deputy chairperson;b) three persons selected, after consulting

the Premiers, from a list compiled inaccordance with a process prescribed bynational legislation;

c) two persons selected, after consultingorganised local government, from a listcompiled in accordance with a processprescribed by national legislation; and

d) two other persons.2. National legislation referred to in subsection

(1) must provide for the participation of-a) the Premiers in the compilation of a list

envisaged in subsection (1) (b); andb) organised local government in the com-

pilation of a list envisaged in subsection(1) (c).

3. Members of the Commission must haveappropriate expertise.

4. Members serve for a term established interms of national legislation. The President


ANNEXURE 1

may remove a member from office on theground of misconduct, incapacity or incom-petence.

222.REPORTSThe Commission must report regularly both toParliament and to the provincial legislatures.

Chapter 14 General Provisions

237.DILIGENT PERFORMANCE OF OBLIGATIONS

All constitutional obligations must be per-formed diligently and without delay.

239.DEFINITIONSIn the Constitution, unless the context indicatesotherwise-

‘organ of state’ means-a) any department of state or administra-

tion in the national, provincial or localsphere of government; or

b) any other functionary or institution- i. exercising a power or performing a

function in terms of the Constitution ora provincial constitution; or

ii. exercising a public power or perform-ing a public function in terms of anylegislation, but does not include acourt or a judicial officer;



ANNEXURE 1

COMPARISON OF PROVISIONS RELATING TOAPPOINTMENTS, REMOVAL FROM OFFICE

AND REMUNERATION AND CONDITIONS OFSERVICE IN CHAPTER 9 AND ASSOCIATED

INSTITUTIONS

ANNEXURE 2

Table 1. Appointments procedures and conditions of service

219COMPARISON OF PROVISIONS RELATING TO APPOINTMENTS, REMOVAL FROM OFFICE AND REMUNERATION AND CONDITIONS OF SERVICE IN CHAPTER 9 AND ASSOCIATED INSTITUTIONS

ANNEXURE 2

Name of body Constitutional and legisla-tive basis

Appointments process Removal from office Remuneration and condi-tions of service

The Auditor-General Chapter 9, Constitution of 1996(sections 181, 188, 189, 193and 194)

Public Audit Act 25 of 2004

The President appoints theAuditor-General on the recom-mendation of the NationalAssembly.

The Speaker initiates theprocess in the NationalAssembly for the appointmentof the Auditor-General. (Section6(1), Public Audit Act, 2004).

A committee of the Assemblynominates the Auditor Generaldesignate. The nomination isapproved by a supporting voteof at least 60% of members ofthe National Assembly. (Section193(4) of the Constitution,1996, and section 6 of thePublic Audit Act, 2004).

The President appoints theAuditor-General for single, non-renewable term of between 5and 10 years. (Section 189 ofthe Constitution, 1996).

The President determines thelength of the term (section6(2), Public Audit Act, 2004).

A resolution concerning theremoval from office must beadopted with a supporting voteof at least two-thirds of themembers of the NationalAssembly.

(Section 8 of Public Audit Act,2004 and section 194 ofConstitution, 1996)

The Standing Committee on theAuditor General must, in con-sultation with the AuditorGeneral, recommend to thePresident the conditions ofemployment (including thesalary) for the Auditor Generaldesignate.

(Section 7 (1) & (2) PublicAudit Act, 2004).




The Commission for GenderEquality

Chapter 9 of Constitution of1996 (sections 181, 187, 193and 194

Commission on Gender EqualityAct 39 of 1996

The President appoints aChairperson and no fewer than7 and no more than 11 com-missioners.

Between 2 and 7 commission-ers must be appointed as fulltime members for a period notexceeding five years, providedthat the term of office of full-time members does not expiresimultaneously. The appoint-ment is renewable for a furtherterm. (Section 3, Commissionon Gender Equality Act, 1996).

The Minister of Justice andConstitutional Developmentshall invite nominationsthrough media and by notice inthe Gazette.

A joint ad hoc committee ofboth Houses of Parliament isestablished to consider thenominations and short list can-didates. The nominations areapproved by both Houses in ajoint sitting.

This procedure is contrary tothe provisions for appointmentof commissioners to theCommission for Gender Equalitycontained in the section 193(4)of the Constitution, 1996).

A resolution concerning theremoval from office must beadopted with a supporting voteof a majority of the NationalAssembly.(Section 194, Constitution of1996).

The President determinesremunerations, allowances andconditions of service for bothfull time and part time mem-bers.(Section 8, Commission onGender Equality Act, 1996).


ANNEXURE 2



The Commission for thePromotion and Protection ofthe Rights of Cultural, Religiousand Linguistic Communities

Chapter 9 of Constitution of1996 (sections 181, 185,193and 194)

The Commission for thePromotion and Protection ofthe Rights of Cultural, Religiousand Linguistic Communities Act19 of 2002

The National Assembly has norole in the appointment ofcommissioners.

The President appoints aChairperson and no fewer than11 and no more than 17 mem-bers for a period of 5 years.

President appoints from a shortlist compiled by a selectionpanel appointed by theMinister (Section 11, theCommission for the Promotionand Protection of the Rights ofCultural, Religious and LinguisticCommunities Act, 2002).

Chairperson and DeputyChairperson appointed as fulltime members, while not morethan three other members maybe appointed in a full-timecapacity (section 14, theCommission for the Promotionand Protection of the Rights ofCultural, Religious and LinguisticCommunities Act, 2002).

The President can remove ongrounds of misconduct, inca-pacity or incompetence, onadoption of a resolution of themajority of National Assemblymembers (section 17 of theCommission for the Promotionand Protection of the Rights ofCultural, Religious and LinguisticCommunities Act, 2002 andsection 194, Constitution,1996).

The Minister in consultationwith the Minister of Financedetermines conditions of serv-ice (section 15, the Commissionfor the Promotion andProtection of the Rights ofCultural, Religious and LinguisticCommunities Act, 2002).




The Electoral Commission Chapter 9 of Constitution of1996 (sections 181, 190, 191,193 and 194)

Electoral Commission Act 51 of1996, as amended by Act 117of 1998, Act 27 of 2000, Act 34of 2003 and Act 14 of 2004.

The President on the recom-mendation of the NationalAssembly appoints commis-sioners.

The Portfolio Committee onHome Affairs considers a shortlist of candidates, compiled bya panel consisting of thePresident of the ConstitutionalCourt, the Public Protector andrepresentatives from theCommission for Gender Equalityand the South African HumanRights Commission.

The Portfolio Committee nomi-nates candidates for considera-tion by the National Assembly.The National Assembly’s rec-ommendations for appointmentto the President must beapproved by a supporting voteof a majority of members ofthe National Assembly.

The President appoints 5 mem-bers, one of who should be ajudge, for a period of 7 years(section 6 of the ElectoralCommission Act, 1996).

The President can only removeon the grounds of misconduct,incapacity and incompetence,after there has been a findingto that effect by a committeeof the National Assembly uponthe recommendation of theElectoral Court, and a majorityresolution to that effect by theNational Assembly.

(Section 194 of Constitution,1996; Section 7(3) of ElectoralCommission Act, 1996).

President after consultationwith Commission onRemuneration ofRepresentatives determinesconditions and remuneration.(Section 7 of ElectoralCommission Act, 1996).


ANNEXURE 2



The South African Human RightsCommission

Chapter 9 of the Constitution of1996 (sections 181, 184, 193and 194)

Human Rights Commission Act54 of 1994

A chairperson and 10 commis-sioners (Section 115 of 1993Constitution) are appointed bythe President for a term notexceeding 7 years. (Section 3,Human Rights Commission Act54, 1994).

Commissioners are appointedon the recommendation of theNational Assembly after beingnominated by a committee ofthe National Assembly andapproved by a supporting voteof a majority of members ofthe Assembly. (Section 193(4)of the Constitution, 1996)

Requires the approval by theNational Assembly and theNational Council of Provinces bya resolution adopted by amajority of at least 75 per centof the Members present at ajoint meeting.(Section 3 of Human RightsCommission Act, 1994)

This is contrary to the provi-sions of section 194 of theConstitution of 1996, whichrequires that the NationalAssembly resolution to removea commissioner be supportedby a majority of members.

The President in consultationwith Cabinet and the Ministerof Finance determines remu-nerations and conditions ofservice. (Section 13, HumanRights Commission Act, 1994)

The Public Protector Chapter 9 of the Constitution of1996 (sections 181,182, 183,193 and 194)

Public Protector Act, 23 of 1994(as amended by Act 113 of1998 and Act 22 of 2003)

The President appoints PublicProtector on the recommenda-tion of the National Assemblyfor a non-renewable period of7 years.

The National Assembly initiatesthe appointment process.

An ad hoc committee is estab-lished to nominate candidates.

The National Assemblyapproves the nomination of thead hoc Committee by a sup-porting vote of at least 60% ofthe members of the NationalAssembly. (Section 193,Constitution, 1996).

A resolution of the NationalAssembly must be adoptedwith a supporting vote of atleast two thirds of the NationalAssembly (section 194 ofConstitution, 1996).

The National Assembly deter-mines the remuneration andconditions of service on theadvice of the relevant parlia-mentary committee (section 2of Public Protector Act, 1994).




Independent CommunicationsAuthority of South Africa

Chapter 9 of the Constitution,1996 (section 192)

Independent CommunicationsAuthority of South African Act13 of 2000, as amended by Act3 of 2006

The National Assembly throughthe Portfolio Committee onCommunications initiates theprocess and considers candi-dates for appointment.

A Chairperson and 8 councillorsare appointed by the Ministeron the approval by the NationalAssembly.

The National Assembly mayinvite technical experts to assistin the selection, evaluation andappointment processes of thecouncillors.

The National Assembly submitsto the Minister a list of suitablecandidates at least 11/2 timesthe number of required candi-dates. (Section 5, IndependentCommunications Authority Act,2000 as amended).

The Chairperson is appointedfor a term of 5 years. Othercouncillors are appointed for aterm of 4 years (section 7,Independent CommunicationsAuthority Act, 2000 as amend-ed).

Removal from office requiresthe adoption by the NationalAssembly of a resolution callingfor that councillor’s removal.The Minister must remove acouncillor from office on adop-tion of such a resolution by theNational Assembly (Section 8,Independent CommunicationsAuthority Act, 2000 as amend-ed).

The Minister ofCommunications with concur-rence of Minster of Financedetermines remuneration (sec-tion 10 of IndependentCommunications Authority Act,2000, as amended)


ANNEXURE 2



Pan South African LanguageBoard

Chapter 1 of Constitution of1996 (section 6)

Pan South African LanguageBoard Act 59,1995, as amend-ed by Act 10 of 1999 and Act36 of 2001.

The Minister appoints no fewerthan 11 and no more than 15members for a renewable termof 5 years.

The Minister, after consultingwith the Portfolio Committeeon Arts and Culture, appoints acommittee to invite nomina-tions for the general public. ThePortfolio Committee conductsinterviews and compiles a shortlist from the names forwardedto it by that committee. ThePortfolio Committee’s short listis then forwarded to Minister,who makes the selection forappointment after consultingwith the Portfolio Committee(section 5, Pan South AfricanLanguage Board Act, 1995, asamended).

Minister may terminate mem-bership If he or she is satisfiedthat:• The person no longer com-

plies with criteria (fit andproper, South African citi-zen, broadly representativeof diversity pf users of offi-cial languages; have lan-guage skills; supportive ofthe principle of multi-lin-gualism);

• Absence from two or moreconsecutive meetings ofthe Board without leave;

• On request of memberwishing to resign;

• Recommendation of themajority of Board (on rea-sonable grounds).

(Section 5(4) Pan South AfricanLanguage Board Act, 1995, asamended)

The Minister with the concur-rence of Minister of Financedetermines criteria for paymentof honoraria and reimburse-ments to members (section 13,Pan South African LanguageBoard Act, 1995, as amended).

Public Service Commission Chapter 10 of Constitution of1996(section 196)

Public Service Commission Act17 of 1997

14 Commissioners appointed bythe President: 5 are nominatedby the National Assembly and9 are nominated by Premiers ofthe provinces (section 196(7)of Constitution, 1996).

The Portfolio Committee onPublic Service andAdministration considers nomi-nations for the 5 candidates tobe nominated by the NationalAssembly.

Removed in terms of section196(11) and (12) ofConstitution.

Adoption by the NationalAssembly of a resolution for aCommissioner’s removal.

Written notification by thePremier that the provincial leg-islature has adopted a resolu-tion for removal.

The President determines con-ditions of service and remuner-ations (section 6 of PublicService Commission Act, 1997).




National Youth Commission No Constitutional basis

National Youth Commission Act19 of 1996 (as amended by Act19 of 2000)

President appoints 5 membersfor a renewable term notexceeding 5 years. Currentlythe commissioners are appoint-ed for three years.

Appointed on the advice ofcommittee of Parliament (sec-tion 4, National YouthCommission Act, 1996

The Joint Monitoring Committeeon the Status and Quality ofLife of Children, Youth andDisabled Persons considersnominations..

Removed from office byPresident after consultationwith the Commission, if in hisor her opinion there aregrounds to do so.

(Section of National YouthCommission Act, 1996) The

President, in consultation withthe Minster of Finance deter-mines conditions of service andremunerations.

(Section 11 of National YouthCommission Act, 1996


ANNEXURE 2



Financial and Fiscal Commission Chapter 13 of Constitution (sec-tions 220 and 221)Financial and Fiscal CommissionAmendment Act 99 of 1997, asamended by Act 96 of 1997and Act, 25 of 2003

There is no role for theNational Assembly in theappointment process

Appointed by the President fora term not exceeding fiveyears.

Section 221(1), Constitutionmade provision for 22 commis-sioners.

Section 7 of the Constitution ofthe Republic of South AfricaSecond Amendment Act 61 of2001 amended section 221 ofthe Constitution, 1996, reducingthe number of commissionersfrom 22 to 9: • Chairperson and Deputy

Chairperson.• Three persons selected after

consulting with thePremiers, from a list com-piled in accordance with aprocess prescribed bynational legislation.

• Two persons selected afterconsulting with organisedlocal government in accor-dance with a process pre-scribed by national legisla-tion

• Two other persons.

The Minister must consultPremiers to make nominationswhenever vacancies for 3 per-sons appointed by Premiersneed to be filled.

Removed from office by thePresident on the findings of atribunal appointed by thePresident for that purpose. (Section 11 of Financial andFiscal Commission Act, 1997, asamended).

The President determinesremunerations and other condi-tions of service taking intoaccount factors such as recom-mendations of Minister and thecommission in section 219(5)of the Constitution. (Section 9 of Financial andFiscal Commission Act, 1997)


The Auditor General Mr T Nombembe 1 November 2006 30 October 2013

The Commission forGender Equality

Mrs J Piliso-Seroke, Chairperson

Fulltime:Dr Teboho MaitseMs Nomboniso Papama GasaMs Janine Lousie HicksMr Dizkline Mfanozelwe ShoziDr Yvette Abrahams Ms Ndileka Eumera Portia Loyilane

Part-time Adv Salome KhutsoaneAdv Nomazotsho Memani-BalaniMs Rosieda ShabodienRev Bafana Gideon KhumaloMs Kenosi Vanessa Meruti

1 October 2002

All appointed 1 May2007

All appointed 1 May2007

30 September 2007

30 April 201230 April 201230 April 201231 October 201131 October 201131 October 2011

30 April 201230 April 201230 April 201230 April 201230 April 2012

The Commission for thePromotion and Protectionof the Rights of Cultural,Religious and LinguisticCommunities

Dr MD Guma, Chairperson Ms M BethlehemDr WA BoezakDr LP BoshegoProf S Dangor Dr MAE Dockrat Mr H Gouvelis Dr MD JobsonDr JCH LandmanDr WRJ Langeveldt Ms M Le Roux Ms DDK MaraisMr BB MgcinaDr ON MndendeProf SE Ngubane Mr MKS NtlhaMs M Soni AminDr TSC Magwaza

All appointed 1 January 2004 All expire in five years

Institution Membership Appointment date Expiry of office date

Table 2. Membership, date of appointment and expiry of office


ANNEXURE 2

The Electoral Commission Dr B Bam, ChairpersonMs NFT MpumlwanaMr. T Tselane, and Mr F Van der Merwe Judge H Q Msimang

20 October 200420 October 200420 October 200420 October 200412 February 2006

Term of office expires inseven years.

The South African HumanRights Commission

Jodi Kollapen, Chairperson Zonke Majodina, Deputy

Charlotte Mcclain-NhlapoTom ManthataLeon Wessels Kathy Govender

All appointed 1 October2002

Term of office expires inseven years.

Resigned 1 December 2006

The Public Protector Mr M L Mushwana

Ms M Shai, Deputy Public Protector

1 October 2002

1 December 2005

Terms of office expires inseven years.

The IndependentCommunicationsAuthority of South Africa

Mr P Mashile, ChairpersonMs T CohenMr Z MasizaMr M ZokweMr N NkunaMs B NtombelaProf J van RooyenDr N Socikwa

** Ms M Mohlala, appointed on 1 October 2006, hasresigned with effect from 31 May 2007. ThePortfolio Committee is in process of appointing anew councillor.

1 July 20041 July 20041 July 20041 July 20051 October 20061 October 20061 October 20061 April 2007

30 June 200830 June 200830 June 200830 June 200930 September 2010 30 September 201030 September 201030 March 2011

Institution Appointment date Expiry of office dateMembership


The Public ServiceCommission

The following are nominated by the NationalAssembly:

Prof SS Sangweni, ChairpersonMr JH Ernstzen, Deputy ChairpersonDr EG BainMs MRV MokgalongMs N Mxakato-Diseko

Nominated by the Provincial Legislatures:

Mr JDS Mahlangu, Member (North West Province) Mr DW Mashego, Member (Mpumalanga) Mr M Msoki, Member (Eastern Cape) Ms PM Tengeni, Member (KwaZulu/Natal) Mr P Helepi, Member (Free State) Dr NV Maharaj, Member (Western Cape) Mr KE Mahoai, Member (Limpopo) Mr KL Mathews, Member (Northern Cape) Dr R Mgijima, Member (Gauteng)

All appointed November2003

All expire November2008


The Pan South AfricanLanguage Board

Mr HM Thipa, ChairpersonMr HA Strydom, Deputy Ms R FinlaysonMr MA Moleleki Mr MB KumaloMs H Morgan Ms MF SadikiMr P NkomoMr SNL MkhatshwaMr AC Le Fleur Mr PB SkhosonaMr Mr Malope Ms NCP Golole

All appointed February2002

All expire February 2007

On 16 January 2007 theMinister extended termof office to June 2007


ANNEXURE 2

The National YouthCommission

Ms N Nkondlo, ChairpersonMs V TuleloMr M Mothupi Mr D J Van VuurenMr O Sipuka

All appointed 1 July 2006 All expire 30 June 2009

The Financial and FiscalCommission

Dr B Setai, ChairpersonMr J Josie, Deputy

Ms T AjamMr R Maluleke Mr M KuscusMr K Chetty Mr B Mosley-LefatolaMs G MoloiDr A Melck

1 August 200530 January 2002

1 July 20041 July 20041 July 20041 January 20021 July 20041 July 200430 January 2002

30 July 20101 February 2007

30 June 200930 June 200930 June 00931 December 200730 June 200930 June 20091 February 2007


LIST OF CHAPTER NINE AND OTHER STATUTORY INSTITUTIONS IN WHICH

THE NATIONAL ASSEMBLY HAS A ROLE TO PLAY

ANNEXURE 3

233LIST OF CHAPTER NINE AND OTHER STATUTORY INSTITUTIONS IN WHICH THE NATIONAL ASSEMBLY HAS A ROLE TO PLAY

LIST OF CHAPTER NINE AND OTHER STATUTORY INSTITUTIONSIN WHICH THE NATIONAL ASSEMBLY HAS A ROLE TO PLAY

ANNEXURE 3

Name of body Role of Parliament

The Auditor-General Appointed by President on recommendation ofthe National Assembly for a period of between 5and 10 years (section 188 Constitution).

The Commission for Gender Equality No fewer than 7 and no more than 11 membersappointed by the President for a period of 5years after nomination by National Assemblycommittee and approval by National Assembly(Section 193, Constitution).

The Commission for the Promotion and Protectionof the Rights of Cultural, Religious and LinguisticCommunities

No fewer than 12 and no more than 17 mem-bers appointed by the President for a period of 5years. No role for Parliament in the appointmentprocess.No role for the National Assembly except normal

oversight role.

The Electoral Commission 5 members appointed by the President for a peri-od of 7 years, on the recommendation ofNational Assembly after nomination by NationalAssembly committee.

The South African Human Rights Commission Members appointed by the President for a termnot exceeding 7 years on recommendation ofNational Assembly after nomination by NationalAssembly committee (Section 193, Constitution).

The Public Protector Appointed by the President on recommendationof National Assembly, after nomination byNational Assembly committee, for a non-renew-able period of 7 years.

Independent Communications Authority of SouthAfrica

Appointed by the Minister after approval by theNational Assembly.


Name of Body Membership

Agricultural Marketing Council, National 10 members appointed by the Minister after commit-tees of the Houses responsible for agriculture have sub-mitted names of suitable candidates. (Section 9 ofAgricultural Research Council Act 86 of 1990)

Drug Authority, Central 12 members appointed by the Minister after parliamen-tary committees for welfare of the National Assemblyand the National Council of Provinces has made recom-mendations to the Minister in relation thereto after atransparent and open process of considering persons sonominated. (Prevention and Treatment of DrugDependency Act 20 of 1992)Inspector-General of Intelligence

Appointed by the President after nominations by JointStanding Committee on Intelligence and approval byNational Assembly.

Judicial Service Commission

National Assembly designates six of its members toserve on the Commission (section 178, Constitution), forthe duration of Parliament. The Members sit in theCommission when it considers appointment of judges.

Library and Information Services, Panel to appointmembers of the National Council for

12 members of council appointed by Minister of Artsand Culture after consultation with the Minister ofEducation for a period of 3 years. The PortfolioCommittee on Arts and Culture has to approve thepanel that will compile a short list. (Section 7 of Libraryand Information Services Act 6 of 2001).

Lotteries Board, National

7 members appointed by the Minister for a period notexceeding 5 years, after recommendations by relevantPortfolio Committee (Section 3 of Lotteries Act 57 of1997).

Magistrates Commission

The National Assembly appoints four of its members,for the duration of the term of Parliament.

Media Development and Diversity Agency

The Agency consists of 9 members, 6 of whom areappointed by the President on the recommendation ofthe National Assembly. The chairperson and 3 of the 6members are appointed for 5 years, while the rest holdoffice for 3 years.

Pan South African Language Board

Part II: Other Constitutional and Statutory Bodies

Membership Name of body

11-15 members appointed by Minister for a period offive years after consultation with Portfolio Committeeon Arts and Culture.

Public Service Commission

The Constitution and the Public Service Commission Actprescribes appointment of 14 Commissioners by thePresident for a period of 5years, 5 of whom areapproved by the National; Assembly after recommenda-tion by a committee of National Assembly.

Road Accident Fund, Board

The Director-General: Transport and no fewer than 11and no more than 12 members appointed by theMinister for a period of not more than 3 years after rec-ommendation by selection committee established bythe Minister. (Road Accident Fund Act 56 of 1996).

Board of National Research Foundation

Appointed by Minister after consultation with relevantparliamentary committees (Section 6 of the NationalResearch Foundation Act 23 of 1998).

Advisory Committee of the National Home BuildersRegistration Council

Appointed by Minister after he or she invited nomina-tions from parliamentary committees for housing(Section 23 of Housing Consumers Protection MeasuresAct 95 of 1998).

National Home Builders Registration Council

Appointed by Minister after he or she invited nomina-tions from parliamentary committees for housing.(Section 4 of Housing Consumers Protection MeasuresAct 95 of 1998).

Advisory Board on Social Development

Appointed by Minister after recommendations by com-mittees of the National Assembly and National Councilof Provinces on Social Development. (Section 5,Advisory Board on Social Development Act 3 of 2001).

South African Broadcasting Corporation (SABC) Board

12 non-executive members appointed by the Presidentfor a period not exceeding 5 years on the advice of theNational Assembly and three executive members.(Section 13 of Broadcasting Act 4 of 1999).

National Youth Commission

Appointed by the President on advice of Parliament.The Joint Monitoring Committee shortlists candidates.

235LIST OF CHAPTER NINE AND OTHER STATUTORY INSTITUTIONS IN WHICH THE NATIONAL ASSEMBLY HAS A ROLE TO PLAY

ANNEXURE 3

TERMS OF REFERENCE

ANNEXURE 4

Thursday, 21 September 2006] 2079

No 46—2006] THIRD SESSION, THIRD PARLIAMENT

REPUBLIC OF SOUTH AFRICA

MINUTES OF PROCEEDINGSOF

NATIONAL ASSEMBLY

THURSDAY, 21 SEPTEMBER 20061 The House met at 14:03.2 The Deputy Speaker took the Chair and requested members to observe a

moment of silence for prayers or meditation.3 [14:04] The Chief Whip of the Majority Party moved: That the House refers

the Government Immovable Asset Management Bill back to the PortfolioCommittee on Public Works for further consideration.

Agreed to.4. [14:05] The Chief Whip of the Majority Party moved: That the House

establishes an ad hoc Committee on the Review of State InstitutionsSupporting Constitutional Democracy and the Public Service Commission—(1) the Committee to consist of 10 members as follows: ANC 5; DA 2;

IFP 1; and other parties 2;(2) the Committee to review State Institutions Supporting Constitutional

Democracy as listed in chapter 9 of the Constitution as well as thePublic Service Commission as established in chapter 10 of theConstitution, for the purpose of—

(a) assessing whether the current and intended Constitutional andlegal mandates of these institutions are suitable for the SouthAfrican environment, whether the consumption of resources bythem is justified in relation to their outputs and contribution todemocracy, and whether a rationalisation of function, role ororganisation is desirable or will diminish the focus on importantareas;

(b) reviewing the appropriateness of the appointment and employment arrangements for commissions and their secretariats with aview to enhanced consistency, coherence, accountability andaffordability;

(c) reviewing institutional governance arrangements in order todevelop a model of internal accountability and efficiency;

MINUTES: NATIONAL ASSEMBLY NO 46—2006

237TERMS OF REFERENCE

ANNEXURE 4

2080 [Thursday, 21 September 2006

(d) improving the co-ordination of work between the institutionscovered in this review, as well as improving co-ordination andco-operation with government and civil society;

(e) recognising the need for a more structured oversight role byParliament in the context of their independence; and

(f) reviewing the funding models of the institutions, includingfunding derived from transfers and licences and other fees, witha view to improving accountability, independence and efficiency;

(3) the Committee to conduct its review also with reference to otherorgans of state of a similar nature whose work is closely related to thework of institutions covered in this review;

(4) the Committee may exercise those powers in Rule 138 that may assistit in carrying out its task; and

(5) the Committee to report by not later than 30 June 2007.Agreed to.

5. FIRST ORDER [14:05]Consideration of Special Report of Joint Standing Committee on Intelligence (JSCI)(Announcements, Tablings and Committee Reports, 21 August 2006, p 1790—Reports ofInspector General of Intelligence).Debate concluded.The Deputy Chief Whip of the Majority Party moved: That the Report be noted. Motion agreedto. Report accordingly noted.

6. SECOND ORDER [15:10]Consideration of Request on Recommendations on Appointment of councillors to theIndependent Communications Authority of South Africa (as received from Minister)(Announcements, Tablings and Committee Reports, 20 September 2006, p 2078).Question put: That Dr A J Barendse, Ms M Mohlala, Mr R Nkuna, Ms B Ntombela and Prof JC W van Rooyen be approved for appointment as councillors to fill vacancies on the Council ofthe Independent Communications Authority of South Africa.Declarations of vote made on behalf of Inkatha Freedom Party, Democratic Alliance and AfricanNational Congress.Question agreed to (Inkatha Freedom Party dissenting).Dr A J Barendse, Ms M Mohlala, Mr R Nkuna, Ms B Ntombela and Prof J C W van Rooyenaccordingly approved for appointment as councillors to fill vacancies on the Council of theIndependent Communications Authority of South Africa.

7. THIRD ORDER [15:18]Consideration of Report of ad hoc Committee on Nomination of Persons to fill Vacancies onCommission for Gender Equality (Announcements, Tablings and Committee Report, 18September 2006, p 2053).



Thursday, 21 September 2006] 2081

Question put: That Adv S Khutsoane, Ms N Memani-Balani, Ms R Shabodien, Mr B G Khumaloand Ms K V Meruti be recommended for appointment as part-time councillors, and Dr T Maitse,Ms N P Gasa, Ms J L Hicks, Mr D M Shozi, Ms Y Abrahams, and Ms N E P Loyilane be recom-mended for appointment as full-time councillors on the Commission for Gender Equality.

AYES—176: Abram, S; Ainslee, A R; Anthony, T G; Asiya, S E; Asmal, AK; Batyi, F; Benjamin,J; Bhamjee, Y S; Bhengu, F; Bhengu, P; Bhoola, R B; Bici, J; Bloem, D V; Booi, M S; Botha,N G W; Burgess, C V; Cachalia, I M; Cele, M A; Chikunga, L S; Chohan-Khota, F I; Coetzee,R; Cronin, J P; Cwele, S C; Dambuza, B N; Daniels, P; Diale, L N; Dikgacwi, M M; Dlali, DM; Doidge, G Q M; Doman, W P; Farrow, S B; Fihla, N B; Frolick, C T; Fubbs, J L; Gaum, AH; Gigaba, K M N; Gololo, C L; Gumede, D M; Hajaig, F; Hanekom, D A; Hendrickse, P A C;Hogan, B A; Jeffery, J H; Johnson, C B; Johnson, M; Kasienyane, O R; Kasrils, R; Kekana, CD; Khumalo, K K; Khumalo, K M; Khunou, N P; King, R J; Koornhof, G W; Kotwal, Z;Landers, L T; Lekgetho, G; Lekgoro, M M S; Lishivha, T E; Louw, J T; Luthuli, A N; Maake, JJ; Mabe, L L; Mabena, D C; Madasa, Z L; Madella, AF; Madlala-Routledge, N C ; Maduma, LD;Mahlangu-Nkabinde, G L; Mahlawe, N M; Mahomed, F; Mahote, S; Maine, M S; Maja, S J;Makasi, X C; Maloyi, P D N; Maluleka, H P; Maluleke, D K; Martins, BAD; Mashangoane, PR; Mashigo, R J; Masutha, T M; Mathibela, N F; Matlala, M H; Matsemela, M L; Mbili, M E;Mbombo, N D; Mdaka, N M; Mentor, M P; Meruti, M V; Mgabadeli, H C; Minnie, K J; Mnguni,B A; Mnyandu, B J; Moatshe, M S; Modisenyane, L J; Mogale, O M; Mogase, I D; Mohamed,I J; Mokoena, A D; Moloto, K A; Morobi, D M; Morutoa, M R; Mosala, B G; Moss, L N; Moss,M I; Motubatse-Hounkpatin, S D; Mshudulu, S A; Mthembu, B; Mthethwa, E N; Mzondeki, MJ G; Nawa, Z N; Ndzanga, R A; Nel, A C; Nene, M J ; Nene, N M; Newhoudt-Druchen, W S;Ngaleka, E; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Njikelana, S J; Njobe,MA A; Nkabinde, N C; Nkem-Abonta, E; Nkuna, C; Nogumla, R Z; Ntuli, B M; Ntuli, M M;Ntuli, R S; Ntuli, S B; Nwamitwa-Shilubana, T L P; Nxumalo, M D; Nyambi, A J; Olifant, D AA; Oosthuizen, G C; Pandor, G N M; Phadagi, M G; Phungula, J P; Pieterse, R D; Radebe, B A;Ramakaba-Lesiea, M M; Ramgobin, M; Ramotsamai, C P M; Rasmeni, S M; Saloojee, E;Schippers, J; Schneemann, G D; Seadimo, M D; Sekgobela, P S; Semple, J A; Sibanyoni, J B;Sigcau , S N; Sithole, D J; Skosana, M B; Smith, V G; Smuts, M; Solomon, G; Sonto, M R;Sotyu, M M; Swart, M; Swart, P S; Swathe, M M; Thabethe, E; Tinto, B; Tobias, T V; Tolo, LJ; Tsenoli, S L; Tshivhase, T J; Tshwete, P; Vadi, I; Van den Heever, R P Z; Van der Merwe, S C; Van der Walt, D; Van Dyk, S M; Van Wyk, A.

ABSTAIN—9: Bhengu, M J; Chang, E S; Mpontshane, A M; Rabinowitz, R; Sibuyana, M W;Smith, P F; Spies, W D; Vezi, T E; Vos, S C.

Majority of support required in terms of section 193(5)(a)(ii) of the Constitution of the Republicof South Africa, 1996, not obtained.Decision of question postponed.

8 [15:47] Members’ statements.9 [16:20] House Chairperson Ms C-S Botha made a statement in regard to

offensive remarks made by Mr R B Bhoola the previous day.


2082 [Thursday, 21 September 2006

10. FOURTH ORDER [16:23]Debate on Heritage Day: Proclaiming our African identity through our cultural heritage.Debate concluded.

11. The House adjourned at 17:18.ZA DINGANI

Secretary to ParliamentMINUTES: NATIONAL ASSEMBLY NO 46—2006

239TERMS OF REFERENCE

ANNEXURE 4

QUESTIONNAIRE

ANNEXURE 5

Questionnaire

241QUESTIONNAIRE

AD HOC COMMITTEE ON REVIEW OF CHAPTER 9 ANDASSOCIATED INSTITUTIONS

ANNEXURE 5

Please read the following to assist you with the completion of the questionnaire:

a) Please answer this questionnaire in English.b) This questionnaire has five sections. Please answer ALL questions. Where a question does

not apply to your institution, your answer should indicate accordingly.c) Please respond to questions in the same sequence as the questionnaire.d) Provide detailed responses in a concise manner.e) Please e-mail completed questionnaires preferably by 15 December 2006, but not later

than 10 January 2007 to [email protected]

A. Role and Functions of Institution

1. How do you view your institution’s constitutional/legal mandate? In other words provide adescription of your understanding of your institution’s constitutional/legal mandate.

2. What role or function does your institution perform that is not carried out by other institutions,whether in government or civil society?

3. In what way, if any, does the role and function of your institution overlap or potentially overlapwith other Chapter 9 institutions?

4. What outcomes do you strive for in order to realise the constitutional/legal mandate set out in1 above?

5. Does the empowering legislation governing your institution provide a clear, workable, and com-prehensive legal framework that supports and empowers the institution to successfully fulfil itscore mandate?

6. What mechanisms do you have in place to measure the outcomes set out in 4 above, and howdo you assess the effectiveness and impact of your work?

7. Have you carried out any evaluation looking at the success or otherwise of your functions, espe-cially in relation to recommendations sent to government, parliament or other public institutions?

8. What have been/are the major constraints facing your institution and how have these impactedon its ability to achieve its mandate?

B. Relationships with other bodies

9. How do you view your institution’s relationship with the executive and Parliament, given its con-stitutionally guaranteed independence and impartiality and the constitutional requirement to beaccountable to the National Assembly? In particular please address the following issues:a) What legal and other mechanisms are in place to ensure and strengthen your institution’s

independence;b) What mechanisms are in place to facilitate reporting to (and being accountable to) the

National Assembly;c) How do you view your relationship with the executive and under what circumstances do you

engage the executive.

10.Is Parliament currently effectively fulfilling its oversight role over your institution? If not, how canthis be improved?

11.What was the intended relationship of accountability between your institution and other institu-tions supporting constitutional democracy and the different branches of government? To whatextent have these relationships been realised?

12.Does your institution have any official or informal relationship with other Chapter 9 institutionsor institutions of a similar nature? If yes, describe the nature of this relationship and the out-comes envisaged and generated by this relationship.

13.What is the extent of collaboration and coordination of the work carried out by your institutionand similar/related work carried out by other Chapter 9 institutions or institutions of a similarnature? Give examples of successful initiatives in this regard.

C. Institutional Governance

14.What are the institutional governance arrangements in your institution? Are these arrangementsclearly set out and do they allow for a smooth running of the institution? Is there a clear, logi-cal and workable division between the members of your institution appointed by the Presidenton advice of the National Assembly and the secretariat? What suggestions do you have toimprove the institutional governance arrangements?

15.Does your institution have mechanisms in place to deal with internal conflict in your institution?If yes, what are these mechanisms and are they effective?

16.What mechanisms are in place for Chief Executive Officers, Chairpersons and Commissioners todisclose and/or seek permission for private commercial/financial interests or involvement? Aresuch mechanisms effective or sufficient to ensure transparency and avoid conflict of interest?

D. Interaction with the public

17.What was the intended relationship between your institution and the public? To what extent hasthis relationship been realised?

18.Does your institution have mechanisms in place to deal with complaints by the public about thework done by your institution or the failure to attend to issues?

19.If you deal with public complaints, what mechanisms are in place to deal with such complaints,to follow through on such complaints and to successfully resolve such complaints?

E. Financial matters

20.Give an indication of your budget allocation, additional funding and expenditure over the pastfive years.

21.Please provide detailed information of the remuneration packages for office-bearers andCommissioners.

22.Please illustrate the budget process followed by your institution, including the process of alloca-tion of funds.

23.Are the current budgetary and administrative arrangements sufficient to ensure autonomy ofChapter 9 institutions?

24.To what extent are the resources allocated to your institution directly spent on meeting its keyresponsibilities?


243QUESTIONNAIRE

ANNEXURE 5

LIST OF SUBMISSIONS

ANNEXURE 6

SUBMISSIONS RECEIVED

INDIVIDUALS

245LIST OF SUBMISSIONS

AD HOC COMMITTEE ON THE REVIEW OF CHAPTER 9 AND ASSOCIATED INSTITUTIONS

ANNEXURE 6

1. Banda, Mr Bright2. Bischof, Ms L3. Boom, Mr Andrew4. Borain, Mr Anthony5. Botes, Mr Hennie6. Boyle, Mrs M7. Buys, Mr Enver8. Canterbury, Mr Athol9. Chohan, MP, Ms F I10. Cloete, Mr E11. Cloete, Mrs J12. Coetzee, Mr D13. Cort, Mrs J14. Cronje, Mr Frans15. Devenish, Prof G E16. Doman, MP, Mr W P17. Ms P Dyasi18. Faasen, Mr Kobus19. Franks, Ms Arlette20. Gillwald, Prof Alison21. Goedhys, Mr Diederik22. Golele, Prof N C P23. Govind, Mr N K 24. Gouws, Prof Amanda25. Gqomo, Ms L N26. Groenewald, Mr D27. Gupta, Prof Ram Kishore28. Haessler, Mr Fred29. Haines, Mr Redvers30. Hassan, Ms Fatima31. Hlongwane, Mrs Jennifer32. Houston, Mr E M33. Jasson, Mr Heinz D G34. Joosab, Mr E D35. Khumalo, Ms Grace36. Laher, Mr Ameen37. Landman, Dr Chris38. Langeveldt, Dr W39. Lawrence, Mr Graham40. Lesejane, Ms M E41. Lilley, Ms Marilyn42. Malefo, Mr L D43. Maltese, X

44. Marawu, Mr M M45. Mndai, Mr O46. Modise, Mr L G M47. Moeketsi, Mr P D48. Moganetsi, Mr M J49. Moila, Mr Modisi Jo50. Morar, Mr R51. Motsoeneng, Mr Thabang52. Naidoo, Mr P53. Ngamlana, Ms Koleka54. Nkosi, Mrs N R55. Nongayiyana, Mr T56. Okungu, Mr M57. Pillay, Mr Reggie58. Poremba-Brumer, Mr D59. Potter, Mr Charl60. Pretorius, Ms Sarah61. Prinsloo, Mr J P62. Qhautse, Mr Aubrey63. Schafer, Mr Karl Heinz64. Semple, Ms J A65. Seoka, Rt Rev Jo66. Singh, Mr B67. Skiti, Miss L68. Smuts, MP, Ms M69. Sokopase, Mr Yamkela 70. Swanepoel, Mr E71. Thompson, Mr Rhett72. Tyolwana, Ms Nonkosi73. Ulrich, Mr Neil 74. Van der Merwe, Dr C J 75. Van der Merwe, MP, Mr J H76. Van Heerden, Mr Fanie77. Vorster, Mrs A M78. Vosloo, Mr J M J S79. White, Ms Mary80. Williams, Mr Anthony81. Williams, Miss Chris82. Winegaard, Mr L83. Wixley, Ms M84. Anonymous85. Anonymous

1. Aids Law Project2. Congress of South African Trade Unions

(COSATU)3. Department of Communications4. F W de Klerk Foundation5. Foundation for Human Rights6. Human Sciences Research Council (HSRC)7. Institute for Democracy in South Africa

(IDASA)

8. Ministry for Justice and ConstitutionalDevelopment

9. Ms B A Hogan, MP, Chairperson of theStanding Committee on the Auditor-General

10. Ms F Chohan, MP11. Open Democracy and Advice Centre (ODAC)12. Prof Amanda Gouws13. Tutumike14. University of Cape Town (UCT)

1. Afriforum2. Aids Law Project3. Amukelani Resource Centre4. ANC Youth League5. ANC Women’s League6. Anonymous7. Civil Society Prison Reform Initiative (CSPRI)8. COSATU9. Deaf Federation of South Africa (DEAFSA)10. Edzwilini Lemindeni Haven11. English Language Academy of SA12. Foundation for Human Rights13. Gender Advocacy Program (GAP)

14. F W De Klerk Foundation15. Helen Suzman Foundation16. Human Rights Institute of South Africa

(HURISA)17. IDASA (Political Information Monitoring

Service)18. Kathorus Community Radio19. Lusikisiki Child Abuse Centre (Lucare)20. Open Democracy Advice Centre (ODAC)21. People Opposing Women Abuse (POWA)22. TUTUMIKE23. UWC Community Law Centre24.UWC Gender Equity Unit


ORAL SUBMISSIONS

NON-GOVERNMENTAL AND CIVIL SOCIETY ORGANISATIONS

1. Department of Arts and Culture2. Ministry of Communications3. Department of Education4. Ministry of Home Affairs

5. Department of Justice & ConstitutionalDevelopment

6. Minister in the Presidency7. Ministry of Provincial and Local Government8. Department of National Treasury

GOVERNMENT MINISTRIES AND DEPARTMENTS

1. Joint Monitoring Committee on theImprovement of Quality of Life and Status ofChildren, Youth and Persons with disabilities

2. Joint Monitoring Committee on theImprovement of Quality of Life and Statusof Women

3. Portfolio Committee on Communications4. Portfolio Committee on Public Service and

Administration5. Standing Committee on Public Accounts6. Standing Committee on the Auditor-General

PARLIAMENTARY COMMITTEES

247LIST OF SUBMISSIONS

ANNEXURE 6

REPORT ON PUBLIC OPINION SURVEY

ANNEXURE 7

RESEARCHED FORParliament of the Republic of South Africa

BY THECommunity Agency For Social Enquiry

JUNE 2007

249REPORT ON PUBLIC OPINION SURVEY

CHAPTER NINE, CHAPTER TEN AND ASSOCIATED RIGHTS-BASED INSTITUTIONS: A PUBLIC OPINION SURVEY

ANNEXURE 7

This report was compiled and produced for the Parliament of the Republic of SouthAfrica by the Community Agency for Social Enquiry (CASE)

Yuri Ramkissoon P.O. Box 32882Aislinn Delany BraamfonteinMandla Vilikazi 2017

Telephone: +27 (11) 646 5922Fax: +27 (11) 646 5919E-mail: [email protected]: www.case.org.za

Table of Contents

TABLE OF CONTENTS 250

EXECUTIVE SUMMARY 251

Background to the Study 251

Study design 251

Results 251

Conclusion 253

RIGHTS-BASED INSTITUTIONS SURVEY 254

Introduction 254

Background to the Study 255

Aim and Objectives 255

STUDY DESIGN 256

Instrument Design 257

Training & the Fieldwork Team 257

Capturing and Analysis 257

Limitations 257

RESULTS OF THE SURVEY 258

Demographic Profile 258

Awareness of Rights-Based Institutions 259

Importance and Effectiveness of Institutions 260

Conclusion 267


Executive SummaryBACKGROUND TO THE STUDY

Enshrined in Chapter 9, Chapter 10 and other sections of the South African Constitution is a list ofinstitutions that were initiated to offer democratic support to South African citizens and serve tostrengthen constitutional democracy in the South African Republic. These institutions include the:

• Human Right’s Commission• Commission on Gender Equality• National Youth Commission• Public Protector• Independent Electoral Commission• Public Service Commission• Commission for the Promotion and Protection of the Right’s of Cultural, Religious and

Linguistic Communities• Pan South African Language Board• Auditor-General, and• Independent Authority to Regulate Broadcasting

As part of a wider survey to rationalise the inclusion of these institutions within the constitution,C A S E was commissioned to undertake a nationwide survey to assess the awareness of the exis-tence, significance and efficiency of these institutions.

STUDY DESIGN

The study consisted of a national household survey. Data from the 2001 Census was used as asampling frame and a multi-stage stratified cluster sampling procedure was used to draw thesample. The sample was stratified by province, race and type of area and eight randomly selectedrespondents (aged 14 years and above) were interviewed in each selected enumerator area. Inaddition, a quota system was used to ensure a gender balance in the sample.

Data was captured using a Microsoft Excel template designed by C A S E and then exported toStata 9 for cleaning and statistical analysis.

RESULTS

The following results were obtained from the household survey regarding the awareness ofrights-based institutions and perceptions of the importance, effectiveness and efficiency of theseinstitutions.


ANNEXURE 7

Demographic Profile

• The sample was evenly split between males and females.• Ages ranged from 14 years old to 89 years old, with a slightly larger proportion of respon-

dents in the 14 – 35 year age group than the >35 year age group.• The majority of respondents were African followed distantly by Coloured (11%) and White

(10%). Indians constituted the smallest group (3%).• The majority of respondents had some secondary qualification and less than a quarter had

some primary education. A total of 14% had some post-matric education while 4% had noformal schooling.

Awareness of the Rights-Based Institutions

• Over three quarters of the respondents were aware of the existence of the IndependentElectoral Commission and two thirds had heard of the Human Right’s Commission. Just overhalf had heard of the Commission on Gender Equality and the National Youth Commission,while a quarter had heard of the Pan South African Language Board.

• A significant relationship was noted between the level of awareness of the institutions andlevel of education at a 95% confidence interval. With an increase in education level, anincrease in level of awareness was noted.

• A breakdown of the number of institutions that respondents were aware of, shows a substan-tial level of awareness of the chapter 9 and the associated rights-based institutions. Only16% of respondents were not aware of at least 1 institution, and more than 50% of respon-dents were aware of 4 or more of the 8 institutions

Efficiency of Chapter 9 and Associated Rights-Based Institutions

• All of the institutions were rated as important by the respondents but not as effective. TheHRC and IEC were rated as effective by 62% and 68% of respondents respectively, while halffelt the same about the NYC and just over a third felt the same about the CGE. Only 23% feltthat the PSLAB was effective in its function.

• On average, 90% of respondents agreed that the institutions could improve their services by“assisting people to understand and access their rights, informing the public more of whatthey are doing and being more visible.”

• In total, 554 respondents had some form of contact with one or more of the institutions, themajority with the IEC.

• The nature of the contact was mainly through attendance at a public meeting or event.• More than half of the respondents that had laid a complaint indicated that they had found it

easy to do so and just over a third indicated that they were informed of what was being doneabout this complaint.

• Approximately one quarter of respondents indicated that they were first contacted about theircomplaint within 2 to 4 weeks or 2 to 3 months and the majority indicated that it took lessthan one month to receive a final response.

• Most respondents felt that the overall manner in which their complaint was handled was verypoor, while just over a quarter felt the manner was good.


CONCLUSION

Overall, awareness was high for the IEC and HRC but lower for the remaining institutions andoverall awareness increased with an increase in the level of education. Although institutions wereapportioned high importance, their effectiveness was rated poorly and the majority of respon-dents agreed that institutions needed to incorporate all of the suggested improvements.

Most contact with the IEC and the HRC mainly in the form of a public meeting or event andthrough elections. Few respondents laid a formal complaint, but of those that did, most were sat-isfied with the ease at which they were able to lay this complaint and feedback on their com-plaint.

For the most part, respondents were first contacted about their complaint between 2 to 4 weeksor 2 to three months after they had placed it, although some stated that they had never beencontacted. In terms of finalisation, most respondents indicated that their complaint was finalisedin less than a week, but again, many never benefited from a finalisation of their complaint. Themanner in which complaint were handled was rated mainly as very poor.

Overall, it necessary to increase the awareness of less distinguishable institutions, especially forthose respondents lacking in secondary or tertiary qualifications. It is also necessary to improvethe effectiveness of institutions, promote contact and feedback and improve the handling of com-plaints,


ANNEXURE 7

Rights-Based Institutions SurveyINTRODUCTIONThe Chapter 9 institutions and associated rights-based institutions that are the focus of this studyare those institutions established primarily under Chapter 9 and Chapter 10 of the South AfricanConstitution (although the mandates of some are specified elsewhere) that offer democratic sup-port to South Africans and serve to strengthen constitutional democracy in South Africa.

These institutions are independent and should remain impartial at all times, exercising their pow-ers and performing their functions without fear, favour or prejudice.

61

Given that state institutionsof the previous government had little credibility, there was a need under the new government fornew Constitutional arrangements to support the new democracy. These institutions are intendedto offer support and oversight on issues relating to constitutional rights between the governmentand the general public, and to promote the empowerment of South Africans.

When initiated, it was envisaged that these independent institutions would support constitutionaldemocracy because, amongst other things, they would help to:

• Restore the credibility of the state and its institutions in the eyes of the majority of citizens• Ensure that democracy and the values associated with human rights and democracy flourish

in the new South Africa• Ensure the successful establishment of and continued respect for the Rule of Law• Ensure that the state became more open and responsive to the needs of its citizens and more

respectful of their rights62

The institutions described in Chapter 9 of the South African Constitution that offer this constitu-tional support include:

• South African Human Rights Commission (HRC): performs the functions relating to humanrights entrenched in Chapter 2 of the constitution. It functions to promote human rightsand to monitor the conformation to these rights.

• Commission for Gender Equality (CGE): functions to promote respect and promote attain-ment for gender equality.

• Public Protector (PP): investigates and reports on improper conduct in state affairs or pub-lic administration, but may not investigate court decisions.

• The Commission for the Promotion and Protection of the Right’s of Cultural, Religious andLinguistic Communities: aims to promote respect and tolerance for the rights of variousgroups within South Africa

• The Auditor-General: functions to audit and report on the accounts of all national, provin-cial and municipal departments within the government of South Africa, as well as anyother institution that falls under national or provincial legislation.

• The Independent Electoral Commission (IEC): serves to organise and manage all national,provincial and local election and to ensure that these elections are free and fair.


61 Institute for Democracy in South Africa (IDASA). What are the Chapter 9 Institutions?http://www.idasa.org.za/index.asp?page=faqs_details.asp%3FRID%3D76

62 Asmal, K. (2006): Rationale for the inclusion of Chapter 9 Institutions in the Constitutionhttp://oldwww.parliament.gov.za/pls/portal/web_app.utl_output_filter2?p_index=speech_index&p_id=643233

Under Chapter 10 of the South African Constitution:

• Public Service Commission: to promote principles and values in the public service byinvestigating, monitoring, evaluating, communicating and reporting on public administra-tion. And to ensure the promotion of excellence in governance and the delivery of afford-able and sustainable quality services

63

.

Other associated rights-based institutions:

• National Youth Commission: functions to coordinate, promote and monitor youth develop-ment through the implementation of an integrated youth development framework. Youthis defined as people aged 14 – 35 years.

• Pan South African Language Board: promotes multilingualism in South Africa by fosteringthe development of all 11 official languages, while encouraging the use of the manyother languages spoken in the country.

For the purposes of this study, the above institutions shall be referred to collectively as ‘rights-based’ institutions.

BACKGROUND TO THE STUDYIn 1999, a report submitted to Parliament which detailed, amongst other issues, the ‘oversight’role of Parliament (including the management of constitutional rights-based institutions), pro-posed a more structured oversight role by Parliament over these institutions. Subsequently, inFebruary 2005 the Cabinet tasked the Minister of Public Service and Administration with conduct-ing a review of these institutions, a responsibility later adopted by Parliament itself due toConstitutional requirements. On 21 September 2006, an ad hoc committee was established withthe mandate to review State Institutions Supporting Constitutional Democracy, as listed in theSouth African Constitution.

AIM AND OBJECTIVESIn this context, the Community Agency for Social Enquiry (C A S E) was commissioned by theParliament of the Republic of South Africa to undertake a brief survey of public perceptions of therelevant institutions. The aim of the study was to assess the awareness of South African citizensof the existence of the institutions, and to obtain perceptions regarding the importance and effec-tiveness of these rights-based institutions.

The specific objectives were to:

• Assess the levels of awareness of the rights-based institutions amongst the public• Determine perceptions regarding the importance and effectiveness of the institutions in

the eyes of South African citizens• Determine perceptions regarding contact with these institutions.


ANNEXURE 7

63 The Public Service Commission website: http://www.psc.gov.za/

STUDY DESIGNThe study consisted of a national household survey to assess public opinions on the above issues.A sample of 2500 households was selected using the South African Census 2001

64

data as a sam-pling frame. The sample was drawn by means of a multi-stage stratified cluster sampling tech-nique, with the sample stratified by province, race and type of area. The next step was to selectenumerator areas (EA’s) from each stratum. A total of 313 EA’s were selected across all nineprovinces in the country, with the largest number of EA’s selected proportionally from Gautengand KwaZulu-Natal and the lowest from the Northern Cape. The sample distribution is indicated inthe table below.

Table 1: Number of EA’s and interviews, by province

The final sampling step involved the identification of eight stands per EA. Interviewers used arandom interval (calculated by dividing the approximate number of stands in the EA by the totalnumber of interviews required in that EA) to identify households that should be included in thesample. A random number grid was used to select the appropriate respondents aged 14 years orolder. If selected respondents were under the age of 18 years, the parent or guardian wasrequired to sign a consent form, formalising their acceptance of the conditions of the study andgiving permission for the child to participate.

The original sample was drawn based on adults (aged 18 years or older), but this was laterchanged to include respondents aged 14 years and older to ensure that the target group of theNational Youth Commission (youth aged 14 – 35 years) were included in the study. The distribu-tion of the two groups is almost the same (see table in appendix). A gender quota was also usedto ensure an even gender distribution in the sample.

The data has to be weighted due to over sampling in some strata to ensure sufficient numbers insmall strata. The weights for this data were calculated as the inverse of the probability of selec-


64 Census 2001, Statistics South Africa

Province Enumerator areas Interviews

Gauteng 67 536

KwaZulu-Natal 66 528

Western Cape 40 320

Eastern Cape 38 304

Limpopo 30 240

North West 24 192

Mpumalanga 18 144

Free State 17 136

Northern Cape 13 104

TOTAL 313 2504

tion, using the same 2001 Census data as used for the sample selection.

Instrument DesignThe original questionnaire was designed by the Research Unit at the Parliament of the Republic ofSouth Africa and incorporated comments by C A S E researchers.

Training One-day training sessions were held in four provinces over a period of two weeks in late May.Training aimed to:

• Provide a background on the rights-based institutions covered in the study• Generate a through understanding of the aims of the questionnaire, the structure and the

administering of the questionnaire.• Establish a comprehensive understanding of the random selection procedures; and • Discuss translations issues to ensure a common understanding of concepts

In total, 70 fieldworkers were employed nationwide to administer the questionnaires.

Capturing and Analysis Data was captured electronically internally on a Microsoft Excel spreadsheet designed by C A S E.The data was then transferred to Stata 9 for cleaning and statistical analysis.

We have generally reported on the percentage distribution of the data across the institutions.Significance tests have been conducted to determine the importance of demographic variation(primarily in terms of sex, age and education) and only results that are statistically significant atthe 95% level have been reported (i.e. results that we are 95% sure are not due to chance).These significance tests have been adjusted to take into account the sampling errors due to thesampling design using the survey analysis procedures in Stata.

Limitations This study was carried out over a period of just over one month under extremely tight deadlines,making the fieldwork a challenge and limiting the time allowed for analysis. This was exacerbat-ed by the public sector strike which took place at the same time.

A second limitation was that although there was a desire to include children (not just youth) inthe survey, this was not possible due to logistical reasons at the time this was communicated. Forthis reason, the findings from this study are relevant only to those living in South Africa who areaged fourteen years and above.


ANNEXURE 7

Results of the SurveyThis section considers the findings of the 2007 household survey of public perceptions of selectedrights-based institutions conducted in nine provinces across South Africa. After describing thedemographic profile, the findings are presented under three sections, namely awareness of theinstitutions, perceptions of the importance and effectiveness of the institutions and contact withinstitutions. Using the weighted data, the sample consisted of a total of 2457 interviews.

DEMOGRAPHIC PROFILE

Table 2: Demographic Profile of Respondents

The sample was evenly split between males and females. The majority of respondents wereAfrican (75%), followed by Coloureds who constituted 11% of the sample. Overall, the racial dis-tribution followed the general distribution of the South African population.

Most respondents (62%) had some form of secondary education, while 14% had a tertiary quali-fication in the form of a tertiary diploma or undergraduate or postgraduate degree. Few respon-dents (4%) had no formal education. A single respondent reported being an “apprentice” but didnot reflect their education level and was recorded as “other.”


N %GenderFemale 1214 50%Male 1237 50%N 2451 100%RaceAfrican 1838 75%Coloured 271 11%White 240 10%Indian 100 4%N 2454 100%EducationNo Formal Schooling 102 4%Primary School 481 20%Secondary School 1519 62%Tertiary Diploma 235 10%Undergraduate Degree 77 3%Postgraduate Degree 22 1%Other (Specify) 1 0%N 2437 100%

Awareness of Rights-Based Institutions

Figure 1: Awareness of Right-based Institutions

Three quarters of respondents (74%) indicated that they had heard of the Independent ElectoralCommission (IEC), while two thirds of respondents (65%) had heard of the Human RightsCommission (HRC). Just over half the respondents were aware of the Commission on GenderEquality (CGE, 53%) and the National Youth Commission (NYC, 54%).

It is important to note that a question that asks whether respondents have heard of an institutionis likely to overestimate the number of people who are familiar with the institution, as respon-dents may confuse the institution with other bodies or simply fall into a pattern of positiveresponses. The levels of awareness of the Commission for the Promotion and Protection of theRights of Cultural, Religious and Linguistic Communities (CPP) and the Public Service Commission(PSC) appear particularly high, but in the absence of a question in which respondents are askedto explain the functions of the institutions, it is difficult to determine the accuracy of the reportedawareness.

When comparing the mean of levels of awareness with the demographic results, there was norelationship between awareness and gender or age.

Table 3: Proportion Aware of the HRC, by education level


ANNEXURE 7

HRC CGE NYC PP

IEC PSC CPP PSALB0

20

40

60

80

65 53 54 42 74 38 34 26

SOURCE: COMMUNITY AGENGY FOR SOCIAL ENQUIRY

AWARENESS OF INSTITUTIONS

% 95% Confidence IntervalComparison of Level of Education with Awareness of the HRCNo formal education 29% 17% 42%Primary 45% 39% 52%Secondary 68% 65% 72%Tertiary 91% 86% 95%

There was, however, and association between awareness and the level of education of therespondents. Overall, as the level of education increased so to did the awareness of the institu-tions, as illustrated by the levels of awareness of the HRC indicated in the table above. A similarpattern was observed for all of the institutions.

Table 4: Overall Awareness of Institutions

There is, in general, a substantial level of awareness of the Chapter 9 and associated rights-basedinstitutions. Only 16% of respondents were not aware of any of the institutions, and more than50% of respondents were aware of 4 or more of the 8 institutions.

IMPORTANCE AND EFFECTIVENESS OF INSTITUTIONSIn this section we will examine respondents’ perceptions of the importance and effectiveness ofthe Chapter 9 institutions.

With respect to the importance of these institutions, respondents who had indicated that theywere aware of a particular institution were asked to indicate whether they thought the institutionwas “Not Important”, “Important”, “Very Important” or that they had no opinion on the matter.In the following analysis we created a dichotomous classification of “Important” (those whoresponded “Important” or “Very Important”) and “Not Important” (those who responded “NotImportant” or “Don’t Know”). Responses to this question may have been biased towards“Important” because there were two categories specifying important and only one categoryexplicitly specifying a lack of importance.

A similar approach was adopted with the effectiveness of institutions. Respondents were given achoice of “Not Effective”, “Slightly Effective”, “Effective”, “Very Effective” and a category for noopinion. Again we created a dichotomous variable consisting of “Effective” (containing theresponses “Effective” and “Very Effective”) and “Not Effective” (containing the categories “NotEffective”, “Slightly Effective” and “Do Not Know”).

There are two possible ways in which the responses to these questions may be represented, bothof which have merit. For example, we can calculate the proportion of respondents who thoughtthe institution was effective out of the total who were aware of the institution or out of the total


N %Overall Awareness InstitutionsNone (0) 402 16%Low (1-3) 704 28%Medium (4-6) 822 35%High (7-8) 529 21%Total 2457 100%

population. In the first case we restrict our attention only to those respondents who were awareof the particular institution and assume that the remaining respondents cannot respond in anymeaningful way on the importance of the institution. This method will tend to over-estimate thepopulation estimate of importance since we are assuming that the population who are not awareof the institution would, if they were aware of the institution, have the same general opinions asthose who are aware.

The second option (calculating the proportion out of the total population) assumes that all respon-dents who are not aware of the institution would think that the institution is not important. Thismethod will tend to under-estimate the population estimate of importance.

In the analysis that follows we will report on both sets of statistics and recommend that, in com-municating these results, the basis on which basis the calculation was performed is clearly speci-fied.

Figure 2: Importance of Institutions

Almost all (between 88% and 96%) of the respondents who were aware of the institutionsthought that the institution was important. However, when considering the total population, theproportions who think that the institution is important is significantly lower, from approximately20% for the Pan South African Language Board (PSALB) to 68% for the IEC.


ANNEXURE 7

% OF THOSE AWARE

% OF POPULATION0

20

40

60

80

100

HRC

9688

93 96 9490

9590

62

38

50

40

68

33 31

23

CGE NYC PP IEC PSC CPP PSALB


% RATING INSTITUTION AS IMPORTANT

Figure 3: Effectiveness of Chapter 9 Institutions

Among respondents who were aware of the institutions, a large proportion (80%) felt that the IECwas effective and just over two thirds (67%) felt that the HRC was effective in their functioning.As with the ratings on importance, the proportion of the total population who felt that the variousinstitutions were important is significantly lower. A small proportion of the total population feltthat the CPP (20%) or PSALB (15%) were effective or slightly effective in their performance, butin this case the perceptions of lower levels of effectiveness are likely to be a function of respon-dents’ lack of awareness of these institutions.

Table 5: Perceptions of the Effectiveness of the NYC, by age

There was no significant relationship between perceived effectiveness and gender or level ofeducation. A relationship was noted, however, between age and effectiveness with regards to theNational Youth commission, in which perceived effectiveness was higher for respondents withinthe category of ‘youth’ (aged 14 – 35 years) than amongst older respondents.


% OF THOSE AWARE

% OF POPULATION0

20

40

60

80

100

HRC

6764

60 62

80

59 5990

44

34 32 27

59

22 2015



% RATING INSTITUTION AS EFFECTIVE

Mean 95% Confidence IntervalComparison of Age with Perceived Effectiveness of the NYCYouth (14 years – 35 years) 77% 70% 84%Adults (> 35 years) 52% 40% 63%

Figure 4: Aspects Institutions could address to Improve their Services

When presented with four statements relating to what institutions could do to improve their serv-ice or performance, almost all respondents (between 88% and 91%) agreed with the statements.Because the levels of agreement were so high, there were no gender or age differences in termsof the improvement suggestions provided.

CONTACT WITH INSTITUTIONS

Table 6: Contact with Institutions


ANNEXURE 7

N %Have you had any contact with any of these bodies?Independent Electoral Commission 368 66%Human Rights Commission 98 17%National Youth Commission 57 10%Public Protector 55 10%Commission on Gender Equality 39 7%Public Service Commission 39 7%Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities 19 4%Pan South African Language Board 7 1%Total 554

BE MORE VISIBLE

INFORM THE PUBLIC MORE

ASSIST PEOPLE TO UNDERSTAND THEIR RIGHTS

ASSIST PEOPLE TO ACCESS THEIR RIGHTS

0

20

40

60

80

100

8890 91 89


RATING OF OVERALL MANNER OF HANDLING COMPLAINT

When asked if respondents had had any contact with the institutions, 554 respondents indicatedthat they had. The majority (66%) indicated that they had had contact with the IEC. A smallerproportion had contact with the remaining institutions, the lowest being the PSALB.

Figure 5: Proportion who have contacted the Institutions

Among respondents who were aware of the institutions, very few had had any contact with theinstitutions save the IEC. This level of contact, higher than the other institutions, could be due tothe elections which respondents perceived as a form of contact with the IEC.

Table 7: Nature of the Contact with Institutions

When questioned about the nature of this contact, most respondents (10% of the total populationand 46% of those who indicated having made contact) had attended a meeting or public eventheld by or dealing with a particular institution. Only 16% of respondents who had made contactdid so by sending a formal complaint to one or more of the institutions. Upon closer analysis the“other” category consisted mainly of responses relating to voting in the elections as a form ofcontact.


65 Proportions do not add up to 100% as not all respondents who indicated having contact with an institution responded to this question.

N % of all % of thoserespondents who made

contact65

What was the nature of this contact?Attended a Public Meeting or Event 256 10% 46%Other 195 8% 35%Sent a Complaint 86 4% 16%

% OF THOSE AWARE

% OF POPULATION0

5

10

15

20

25

HRC

6

3 45

20

4

21

4

2 2 2

15

21

0



% CONTACTING THE INSTITUTION

Table 8: Ease of Complaining and Feedback to Complaint

Under two-thirds of the respondents who had laid a complaint indicated that they had found iteasy to do so and over a third indicated that they were informed of what was being done aboutthis complaint.

Table 9: Duration before first contact and response

Approximately a quarter of the respondents said that they were first contacted about their com-plaint 2 to 4 weeks after it was laid. Just under that proportion indicated that they had neverbeen contacted.

Approximately a third indicated that their complaint took less than one month to finalise and justover one-third indicated that their complaint was never finalised.


ANNEXURE 7

If you had complained, did you find it easy to do so?Yes 50 59%N 86 100%Were you told what was being done about your complaint?Yes 55 67%N 86 100%

N %How long before you were first contacted about your complaint?Less than one week 10 10%2 - 4 weeks 27 27%2 - 3 months 25 25%More than 3 months 7 7%More than 6 months 3 3%Never 22 22%Recent Complaint 7 7%N 101 100%How long before you were given a final response?Less than a month 27 36%2 – 3 months 11 16%More than 3 months 10 13%More than 6 months 1 1%Never 28 34%N 77 100%

Figure 6: Rating of overall handling of complaint

When asked to rate the overall manner in which their complaint was handled, a third indicatedthat the handling of the complaint was good or excellent, while almost half (46%) felt that theoverall handling was poor.


EXCELLENT

GOOD

FAIR

POOR

VERY POOR

0

10

20

30

40

17

13

23

11

35


RATING OF OVERALL MANNER OF HANDLING COMPLAINT

CONCLUSIONSIn terms of awareness, the most widely recognised institutions were the IEC and HRC. It is impor-tant to increase the visibility of less prominent institutions that provide essential constitutionalservices to South African citizens or ensure that government departments are being properlymanaged and regulated. This is especially applicable to the CPP and PSLAB, given that indigenouscultures in South African have been historically marginalised and disempowered. As illustrated bythe significant link between awareness and level of education, it is also necessary to reach theless educated proportions of the population as often it is these groups that are least empowered.

The findings indicate that the identified institutions are clearly regarded by the general public asimportant for the success of South Africa’s young democracy. However, the perceived levels ofeffectiveness of these institutions tended to be lower. There is a perception that while these insti-tutions have a vital role to play in offering support to citizens, they are falling short of their man-date. This is reflected in the extremely high level of agreement with the four suggestions forimprovement in the services provided by the rights-based institutions. On average, 90% ofrespondents agreed that the concerned institutions should increase their visibility, assist citizens tounderstand their rights and access these rights, and do more to inform the public of their activi-ties.

The IEC was the institution with which the highest levels of contact were reported, primarilythrough election mechanisms. The main form of contact with the institutions was through a publicmeeting or event or with the IEC through national, provincial or local elections. A very small pro-portion of the total population had made use of the mechanisms to lodge complaints.

Most of those who laid a complaint agreed that they found it easy to do so and indicated thatthey were told what was being done about the complaint. However, some frustration with theprocess was evident, in that almost half (46%) felt that the overall handling of the complaint waspoor.

On the whole, the levels of awareness can be improved with regards to certain smaller institu-tions and amongst specific groups, such as those with lower levels of education (and possiblelower access to information). The key areas for improvement, however, lie in the perceptions ofeffectiveness, the current lack of visibility and direct interaction with members of the public.


ANNEXURE 7

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