Date: 22/09/2009
Source: Democratic Alliance
Title: DA: Smuts: Shadow Minister of Justice & Constitutional Development, on SA Human Rights Commissioners, National Assembly

A tribute to the outgoing Human Rights Commissioners is in order before our new Commissioners are voted into office. Seven years ago, Parliament voted eleven new Commissioners into office. The President, who must perform the executive action of signing their appointment and who has no discretion in the matter, however appointed only five. Despite their diminished number, Chairperson Jody Kollapen, vice-chairperson Zonke Majodina, and Commissioners Leon Wessels, Karthy Govender and Tom Manthatha have carved the kind of place for the HRC that we envisaged first in 1994 and then in the Final Constitution . They did so well that the Chapter Nine Review recommended changing the law to prolong their terms of office pending the possible proposed creation of an umbrella Rights Commission, incorporating some of the other Chapter Nines, which they would then lead. That amendment has not occurred. More seriously, nothing has been done to bring their law, passed in 1994, into line with the Final Constitution. This neglect played a role in the appointment of only five Commissioners seven years ago. The newly constituted Justice Committee intends to correct all this, and makes an early start by today recommending to the Assembly six persons, who with the Commissioner appointed to a vacancy last year already brings the number to seven. Budgets permitting, we want to appoint more. This is a good beginning, and the new Commissioners bring some of the expertise we need. Dr Danny Titus, LLM, LLD Leiden, all but wrote the book on policing and human rights, while Adv BJ Malatji as Head of Legal Services SAP Limpopo taught policemen not to shoot first and settle damages claims later. As SA's first black blind advocate he will drive the rights of the disabled at the SAHRC, and government can moreover learn a thing or two from him about job creation, which he has achieved in poor communities in Limpopo through entrepreneurship. The DA acknowledges that its views and to some extent - 3 out of 6 - its choices have been accommodated in the list serving before Hon members today. We will nevertheless abstain to indicate our discomfort about the inclusion of one candidate in particular. I wish to place on the record the fact that Adv Lawrence Mushwana, outgoing Public Protector, repeated the very sentiments which gave rise to a dispute between the Ad Hoc Committee on the Review of the Chapter Nine Institutions and himself. We advised him in the course of that review that a Chapter Nine, albeit an organ of State, is not subject to cooperative government. We cited the Constitutional Court's judgement (IEC v Langeberg Municipality) that these institutions must "manifestly be seen to be outside government". Imagine my disbelief, then, when Adv Mushwana said in his interview that he continued to hold the view that the Chapter Nines can cooperate because they are institutions "within government"! When I challenged him he said they were not part of government - "but let's look at reality, the President appoints them." The reality is that the National Assembly votes them into office and holds them to account while simultaneously assisting and respecting them. I will assist and respect from the moment the President signs on the dotted line. That is why I put this on the record now, and why we will abstain. But we will also hold to account.