Comment on Shortlist
Dear Committee Members
Re: Comment on SAHRC Nominees
South Africa First Forum, an organization of over 4000 citizens of South African, wants to create a future where our country and its people are prioritized. We endeavor to assist in ensuring our Constitution is respected and upheld. We champion permanent, positive social, economic and political change. We want everybody to understand why protecting our Constitution and the Institution that guard them is important.
THE SA FIRST FORUM regards the South African Human Rights Commission, and the accompanying legislative framework as a crucial guarantee that the human rights of all South Africans and all those that live on this land, are promoted and protected. Thus we are deeply committed to participating in the process so as to ensure that the best candidates are selected to lead this important Chapter 9 Institution. We submitted an initial input into this process on the 30 September 2016.
THE SA FIRST FORUM has extensively researched the 18 Candidates shortlisted and present our findings based on a desktop review, social media interaction and consultation with our members and base our conclusions on feedback from our SAHRC Nominations 2016 Campaign. You can access our full comprehensive website on the previous link.
The criteria to determine whether or not to determine the nominees were guided by SAHRC Act 2013, specifically section 4 of the Act that demands impartiality and independence. The Commissioners must be fit and proper persons, have a record of commitment to respecting and upholding human rights and must have the knowledge or experience to fulfill the objectives of SAHRC(5).
It is our considered opinion that the following Candidates were found to fulfill the criteria and would probably be able to execute the tasks adequately.
Professor Bongani Majola
Professor Bongani Majola was nominated by Ms Janet Love and Ben Mabena. Professor Majola has academic qualifications including an LLM from Harvard University in 1988. He has practiced as an advocate of the High Court and was the assistant secretary general of the UN International Criminal Tribunal for Rwanda. Besides his extensive international experience and esteem in which he is held, he was also the national director for the Legal Resource Center (1996 - 2003) here in SA which is renowned for quality human rights work and advocacy. We believe he has the experience, knowledge, has a record of commitment to human rights and we can find no information that would indicate he is not a fit and proper person. WE SUPPORT HIM
Professor Firoz Cachalia
Professor Firoz Cachalia holds a BA degree, a BA (Hons) degree, an LLB and a Higher Diploma in Company Law from Witwatersrand University. Cachalia is currently a Professor at the University Of Witwatersrand School Of Law.
Prior to 1994, Cachalia made an immense contribution in challenging and opposing Apartheid, to the transition to democracy and subsequently to the consolidation of democratic institutions. He has held various leadership positions in organisations that fought Apartheid and oppression and played a leading role in Codesa I and Codesa II (Convention for a Democratic South Africa) negotiations. He also worked with the committee that drafted the first versions of South Africa’s democratic Constitutional Principles. During the Codesa negotiations, Cachalia represented the Transvaal Indian Congress(TIC) at the talks.
Cachalia has held several key posts in the public and private sector.; as the Head of the Planning Commission in the Gauteng Provincial Government, and prior to that as the Provincial member of the Executive Council (MEC) for Economic Development. Between 2004 and 2009, he served as the MEC for Community Safety and as a leader of government business. Cachalia has held several positions in the Gauteng Provincial Legislature between 1994 and 2004 – he has served as the Leader of the House, its Speaker and has chaired the Rules Committee and the Petitions Committee. He got the chop in 2010 for allegedly putting the brakes on multimillion Rand Government deals.
He has also held leadership positions in the United Democratic Front (UDF), African National Congress (ANC) and the South African Communist Party (SACP). The Gauteng branch of the Security Association of South Africa (SASA) declared Firoz Cachalia the "Security Personality of 2007". SASA Gauteng president Jack Edery praised Cachalia for a thorough and multifaceted approach to combat crime on all fronts and different levels.
President Jacob Zuma appointed Professor Firoz Cachalia as a nonexecutive director to the Board of the South African Reserve Bank (SARB) in July 2012 for a period of three years.
We believe Firoz Cachalia to be knowledgeable, has experience that will benefit the Commission, has dedicated a large part of his life to the struggle and we can find no evidence that he is not a fit and proper person WE SUPPORT HIM
Ms Pat Moodley
Pat Moodley is a SA female citizen from KZN that was nominated by the South African Women's Law Association. She has a background in public law that spans 30 years, has in the past been appointed an acting magistrate and is currently a director in the Government Department of Justice and Constitutional Development. Her nomination is supported by esteemed Judge Navi Pillay who supports her nomination by citing her dedication and action in the field of children's rights and women's rights. She is cited as having extensive experience working with civil society. Besides her experience in government at a management level, she has academic experience having held the position of assistant dean in the Faculty of Law at Durban Westville University.
Professor Bonita Meyersfeld
Professor Meyersfeld was nominated by Professor Johnathon Klaaren. She is currently the Director of the Centre for Applied Legal Studies . CALS is a civil society organisation based at the School of Law at the University of the Witwatersrand. CALS is also a law clinic, registered with the Law Society of the Northern Provinces. As such, CALS connects the worlds of both academia and social justice. CALS’ vision is a socially, economically and politically just society where repositories of power, including the state and the private sector, uphold human rights. CALS practices human rights law and social justice work with a specific focus on five intersecting programmatic areas, namely Basic Services, Business and Human Rights, Environmental Justice, Gender, and the Rule of Law. It does so in a way which makes creative use of the tools of research, advocacy and litigation, adopts an intersectional and gendered understanding of human rights violations, incorporates other disciplines (such as film and social work) and is conscious of the transformation agenda in South Africa.
Currently she manages 20 staff members, has international experience having been a Parliamentary advisor to the UK House of Lords(2007 - 2009) and vast academic experience with a Doctorate in Law. She is internationally respected. SHE IS SUPPORTED
Mr. Krish Govender
Curiously, Mr. Govender's acceptance of nomination is dated 6 August 2015, quite a substantial period before nomination process was declared. We can only presume that he has been keenly preparing for sometime now for the upcoming interviews. Krish has worked as a State Attorney from 1998 until 2015. His CV details an impressive struggle history and various prestigious appointments to various Governmental bodies and KZN Law Society.
Encouragingly, he recently stated at an international conference that: "the process for appointing Constitutional Court judges in South Africa – in which a list with three names more than the number of appointments to be made is recommended to the president to choose from – should also be reconsidered along with Section 174 of the Constitution, which gives the president that selection power". Govender said the system could lead to a "lottery" for potential candidates and that "the president should not be entrusted with that responsibility of appointing judges to the Constitutional Court as it compromises the separation of powers".
In 2010, he as a JSE member took on advocates that do State work, appearing for the state should consider not charging their normal commercial rates. He said that "they should bear in mind that they were being paid with taxpayer's money and that the state was not a profit-making organisation like a private company". He is committed to transforming the Justice System. HE IS SUPPORTED ALTHOUGH WE ARE NOT SO SURE THAT THIS IS REALLY WHERE HE SHOULD BE AND POSSIBLY SERVE SA IN ANOTHER CAPACITY.
Mr. Shybe Chalklen
Shuaib Chalklen has dedicated his entire professional life to the promotion and protection of human rights in South Africa. In consideration of this work, he has been recognized both locally and internationally. He has often been called upon to share his knowledge, expertise and leadership here and abroad.
His curriculum vitae demonstrates that he has the necessary qualifications and experience in the area of human rights to make a substantive strategic leadership contribution to giving effect to the constitutionally entrenched mandate of the SAHRC. Having worked in Government for many years and thus understanding the nature of the beast and having developed close relationships of trust and mutual respect with civil society organizations, he has the experience, skill and capacity to bridge the divide.
His career highlights and indication of his skills are listed as:
Senior Manager in Government with 13 years experience in the Presidency
Extensive international experience, having worked with the World Bank and the UN
Extensive liason with the international donors and development environment
Worked with the African Union on secondment from the Presidency and managed Continental Program
Extensive knowledge and working practice of human rights instruments, policy drafting and implementation.
Management of the Southern African Federation of Disabled Research Project
Appointed by the Secretary General of the United Nations as Special Rapporteur on Disability (2009 - 2014)
Founder and Chair of the first ever African Disability Forum
Most recently, The World Future Council, welcomed Shybe Chalklen, to have joined the Council to support its activities to safeguard the rights of present and future generations. HE IS SUPPORTED.
Ntlana
Professor Ntlana was nominated by SAHRC employee Ms Cekiso who appeared to be extremely engaged in the nomination process and submitted many candidates.
Professor Ntlana holds a Doctor of Law (2010) after matriculating in 1992 and graduated with LLB in 2000. She has vast academic experience in Constitution and Human Rights law. She has published extensively.
It appears that she has recently been appointed to the Judicial Services Commission.
Ms Sewpal Jana
Devikarani Priscilla Jana, a legend in her own right, was born on 5 December 1943, in Westville, Natal, to a middle class Indian family. She has held various posts including being appointed Ambassador to Ireland. From an early age Jana developed an awareness of the unequal society she was born into, stating in her book Fighting for Mandela, ‘everyone who wasn’t white was suffering’. This conscientization was nurtured early in her life by her father, a school teacher, who challenged social injustices, whether these related to Apartheid or to the Indian caste system. The family was constantly uprooted because of her father’s political activity.
She went on to become the personal attorney of Nelson Mandela and, as such, was one of very few South Africans to have had unique access to Mandela during his incarceration on Robben Island. It has been said of Jana that ‘at one stage, she represented every single political prisoner on Robben Island.’ SHE IS SUPPORTED
We are concerned that the following 2 candidates lack experience of working with civil society and do not demonstrate a thorough knowledge of human rights law
Mr Jonas Sibanyoni
Mr Jonas Sibanyoni was nominated by the Salvation Tabernacle Church. He was a UDF activist, joined the ANC and then MK. He served as a Member of Parliament from 2004 until 2014. The King of the amaNdebele, King Makhosoke has supported his nomination based on their close working relationship the past 8 years. It is also suggested that he has a lot of experience in the Government and especial the Justice sector where he served on the Portfolio Committee. He is also supported by the Department of Justice and Corrections with a formal letter of support.
In 2011 he gained his LLM at the University of the Western Cape. He is currently a Director at a Law Firm, Maluleke, Seriti, Makume and Matlala.
His performance in Parliament can be explored on the People's Assembly Website. Earlier this year he was nominated as a candidate for the Public Protector, but did not make the shortlist and earlier this year as an IEC Commissioner.
Andre Gaum
Andre Gaum is an ANC member of Parliament, a graduate of Stellenbosch University and was admitted as an advocate of the High Court in 1995. He has served on the Home Affairs Portfolio Committee and as Deputy Minister of Education 2008 - 2009. He also was a Provincial MEC and Minister 2001 -2004. He served on the Stellenbosch SRC while a student 1988 - 91.
Andre Gaum is articulate, hardworking and conscientious Member of Parliament. His statements in the House indicate a clear understanding of democracy and constitutional principles. More can be found out about Andre Gaum on his facebook: https://www.facebook.com/andre.gaum
THE SA FIRST FORUM regards the 3 current Commissioners that are nominated for reappointment as not having performed adequately during their tenure, and/or for other reasons, and urge that they are not reappointed:
Adv. Bokankatla Malatji
Adv. Malatji is currently serving as a SAHRC Commissioner heading a portfolio that oversees people with disabilities and older persons. He has been nominated by his professional assist and driver, David.
Before his appointmen, Adv B Malatji who was the Chief Director: Legal Services in the Department of Home Affairs at a time when that Department gained the reputation as the most dysfunctional government Department. To be fair, it is unclear whether Adv Malatji did anything to stop the rot or did himself contribute to the malaise within the Department. During his tenure the Department did pilot several pieces of progressive legislation through Parliament. However during his tenure at the SAHRC, very little has been achieved in terms of promoting the rights of people with disabilities and the older person. Most notably, the SAHRC received warning in March 2015, and notification of the urgent impending gross human rights violations of 2000 people with psychosocial disabilities due to Gauteng Government cancellation of Life care Home Group at the end of June 2016. Some residents were sent home and over 1000 were distributed amongst NGO's, most dodgy and some unregistered. SAHRC was warned again in July 2016 and August that people were going to die. By mid September it was established that 36 people had in fact perished and residents had "disappeared". Hysterical families are crying out for action. No public statement has to date been made by the SAHRC and it appears besides requesting information from various Government Departments and opening a file no action has been taken. This is the "Marikana" of the disability sector and it happened on Malatji's watch.
Lindiwe Mokate
Lindiwe Mokate is currently serving as a Commissioner at the SAHRC and is eligible for reappointment. She is one of three Commissioners that is seeking reappointment. She is nominated by Professor Anne Skelton of the Child Law Center.
Her employment in Government began in 1994 as a Programme Officer in the Presidency specifically dealing with Children's Rights and this is the area she has created a niche specialty.
She was appointed SAHRC in 2009 despite having worked as the CEO of the SAHRC before leaving that organisation under a cloud in 2005. The SAHRC was beset with difficulties during her tenure and there was an exodus of staff and reports of victimisation by senior management. In July of 2005, unhappy staffers wrote an open letter to National Assembly Speaker Baleka Mbete saying that at least 15 staff members had resigned in the first six months of the year and asking for her urgent intervention to save the commission from a “crisis”.
Mokate hit the headlines in 2005 after former chief financial officer Colin Braude accused her of wasteful expenditure and then lost his job soon after. An external audit, however, cleared the commission of allegations that Braude was victimised.
An independent report into staff relations at the SAHRC was also commissioned by Kollapen after this incident. It shed light on further allegations of intimidation and mismanagement at the commission. Mokate refused to cooperate with the investigation by attorney Thandi Orleyn. Despite all of these factors, she was appointed a Commissioner in 2009 and the current malaise may be testament to the appointment of persons that lack leadership and capacity.
Commissioner Lourens Mushwana
Commissioner Lourens Mushwana is currently the Chairperson of the SAHRC. He previously served a controversial term as the Public Protector and his R7 million golden handshake was greeted with shock by many in the public.
In 2011, the Supreme Court of appeal put aside his report on Oilgate and stated regarding Mushwana's report on Oilgate: “The public protector must not only discover the truth, but must also inspire confidence that the truth has been discovered,” The SCA had no difficulty in setting aside Mushwana’s report. Furthermore, the SCA stated that "the ultimate test of the protector’s mettle is his or her ability to work “without fear, favour or prejudice”, an imperative that is non-negotiable and required by section 181(2) of the Constitution". Despite the controversies of his term as Public Protector, Mushwana went on to be appointed in 2009 as Chair of SAHRC despite questions about his ability to work without fear, favour or prejudice.
Mushwana is a qualified lawyer with a Bachelor of Laws from the University of Zululand. From 1972 to 1975 he worked as an interpreter at the Bushbuckridge Magistrate's Court. From 1992 until 2003 he worked as an attorney with Mushwana Attorneys. He is a member of the African National Congress, serving on the Limpopo Provincial Executive from 1994 to 2002, and on the National Executive from 1999 until 2002. From 1999 to 2002 he was also the Deputy Chair of the National Council of Provinces. He was appointed as the South African Public Protector in 2002 and at the end of his term in 2009 he left to Chair the South African Human Rights Commission
Under his stewardship as the current SAHRC Chairperson, the SAHRC has often been silent on many issues and invisible to the public. Recently, Mushwana has been accussed of being lenient to the Zulu King on perceived xenophobic statements made. No public statement has been issued by the SAHRC on the deaths of 37 persons with psychosocial disabilities despite the SAHRC being notified of the impending tragedy in March 2016. These recent events reflect a SAHRC that is in dire need of strong leadership.
THE SA FIRST FORUM has grave concerns and believe the following nominees do not fulfill the criteria:
Chris Nissen
It appears that Chris Nissen himself applied for this position as no nomination forms accompany his documents on the Parliamentary website. He claims in his application to be a fit and proper person that has experience as a struggle veteran and experience in working in government. He also notes his knowledge of Khoisan persons and his religious background as a useful asset to the Commission. He worked for the ANC until serving as Provincial MEC 1994 - 1999 and since 2000 until present he has been a businessman.
Recently in January 2015 he has been in the news when he was arrested and held for drunken driving in his Porsche SUV in Cape Town over the weekend.
In 2005, as South Atlantic Fishing Company, Safco chair, he was a partner in a failed business venture with Brett Kebble. Allegations of broken promises, dodgy licence applications and attempts to use political influence swirl around Safco, an empowerment firm set up by Kebble on JCI to hunt tuna and swordfish off the west coast. SA FORUM DO NOT SUPPORT HIS POSSIBLE APPOINTMENT.
Ms Janine Hicks
Janine Hicks was Commissioner with the Commission for Gender Equality, an independent, statutory body mandated by the Constitution of the Republic of South Africa with promoting and ensuring the attainment of gender equality in South Africa. During her tenure, the CGE performed dismally and Janine Hicks was not free from controversy over irregular travel claims and holding both position of co-CEO and Commissioner. This was detailed in a report from the Public Protector.
She holds an LL B degree from the former University of Natal, Durban, and an MA in Development Studies from the University of Sussex, UK. Through her work with the then Community Law Centre in the early 1990s, Janine has a background and keen interest in rural communities’ access to justice, development and human rights, and in strengthening citizen participation in processes of government, through advocacy. She has a particular interest in women’s human rights issues, and in addressing instances of gender discrimination and inequality. In addition to her role as Chairperson of the Community Law and Rural Development Centre, Janine chairs the Board of Trustees of The Valley Trust, and the Board of Directors of Agenda Feminist Media. SA FORUM DOES NOT SUPPORT HER NOMINATION.
Ndileka Portia Loyilane
Portia Loyilane was nominated by Eastern Cape Disability Economic Empowerment Trust. She attended the University of Fort Hare and has a Bachelor of Commerce (B.Com.), Economics and Business Economics 1979 – 1982. She then obtained a Unisa Higher Education Diploma in 1988 and has a MPhil (Disability Studies) from the University of Cape Town. She served in the office of the Premier of the Eastern Cape as a Deputy Director for the Office on the Status of Disabled Persons and from May 2007- May 2014 was at the Commission For Gender Equality, Eastern Cape. However this was not without much controversy. In 2010, the 2nd Public Protector Report on the Gender Commission details a litany of financial mismanagement and describes an organisation plagued by widespread maladministration. The PP recommended "The National Assembly needs to intervene as a matter of urgency to ensure that adequate steps are taken to restore the credibility of the commission and to enable it to fulfill its constitutional mandate."
In May 2010, in an update to Parliament, the auditor-general painted a similarly bleak picture of the management of the Gender commission. "The instability in leadership at the commission is a huge concern and needs to be flagged as a high priority. The instability resulted in a lack of oversight, direction, monitoring and accountability, which directly resulted in the current financial situation, the auditor-general said. He said that the investigation of the commission had taken longer than expected "due to the magnitude of misconduct, irregularities and contraventions".
In 2012, objections were made in Parliament to the speaker concerning the nomination of Portia Loyilane and Jane Hicks as Gender Commissioners. This is due to irregularities during their previous tenure as joint acting CEO’s and Commissioners. It was revealed that both Ms Hicks and Ms Loyilane were appointed as joint acting CEO’s while continuing to remain on the board of Commissioners, which constituted maladministration and improper conduct.
These objections were raised in a letter by the outgoing acting chairperson, Teboho Maitse, based on a 2010 report by Public Protector Thuli Mandonsela.
The report found the two Commissioners’ appointments to be “unlawful and irregular” on the basis that they were jointly appointed as acting CEO’s and Commissioners.
Key findings of the Public Protector report include:
Both the CGE Act and the Public Finance Management Act (PFMA) prohibit a member of the executive (in this case, the Commission) to be appointed as an acting CEO
The PFMA also does not provide for 2 persons to be appointed as joint accounting officers
The appointment of 2 Commissioners was therefore unlawful and irregular and constituted maladministration and improper conduct
The expenditure that was incurred by the 2 Commissioners when they performed the functions of the CEO of the CGE possibly constituted irregular expenditure
It was also alleged that two claimed travel expenses for their trips to the commission offices in Johannesburg from their homes outside the city. They undertook more than 17 trips in an eight-month period. This was then found to be irregular expenditure by the PP
Portia Loyilane also has an extensive business portfolio. She is Executive Director -Lebone Engineering (Pty) Ltd, t (provides professional services in the technical fields of power distribution, building services, transportation, energy management, mechanical and civil engineering services.), Chairman of the Board - TFM / Fabkomp Manufacturing. FM was established originally in 1966 to specialise in truck customisation, maintenance and repair, and then entered the armored vehicle production industry in the late 1970’s. Subsidiary Fabkomp (PTY) LTD is a fairly large manufacturing company that manufactures products for the Automotive and Engineering industry. The company has steel press shop and manufacturing, a Non Executive Director of the National Lotteries Board and Non Executive Director of LARIMAR Holdings .The Larimar group is a diversified group of companies with interests in the passenger transport, freight transport, vehicle manufacturing, vehicle retail, engineering, manufacturing, financial services and property sectors. SA FORUM DOES NOT SUPPORT HER NOMINATION
Ms Angie Makwetla
Angie Makwetla has a public relations firm, Makwetla and associates. She initially studied to become a social worker but only followed this calling for 2 years after graduating. She is chairperson of the National Arts Council. which has a vision to promote, through the arts, the free and creative expression of South Africa's cultures. The mission is to develop and promote excellence in the arts. Before joining the NAC, she also has had an extensive business background having worked for IBM for 15 years. She has been involved in the NGO sector but does not appear to have human rights work experience but rather socio-economic developmental experience and good public relations expertise.
Unfortunately in July 2012, she was embroiled in the questionable Durban Jazz deal. One the companies involved was MPM. of Angie Makwetla, is a director of MPM as well having been Chair of National Arts Council, the government's primary arts funding vehicle which allocates about R67m to local artists every year. MPM in 2011 is alleged to have also received R10m from the arts department to stage the South African exhibition at the Venice Biennale last year.
She is quoted as saying: "A few years ago, I set myself a mission to live, to love and to leave a legacy. My position as Executive Head of BWA is, I believe, a wonderful opportunity for me to leave a legacy through my contribution to the empowerment of business women in South Africa.“Business with a purpose” is a vision that the BWA should work towards. Women are in the best position, emotionally and otherwise, to bring South African business back to the basics of humaneness and compassion in order to alleviate the misery brought about by poverty, unemployment, HIV/Aids and other societal ills that we see in our communities. SA FORUM DOES NOT SUPPORT HER NOMINATION.
Ms Asha Ramgobin
Ms Ramgobin, founder and current executive director of Human Rights Development Initiative, a position she has held for 12 years, is nominated by Center for Sexuality and AIDS. She was admitted as an advocate in 1990 and practiced at the Durban Bar for 4 years. She has an LLM in International Human Rights Law from Lund University which obtained after graduating from University of Durban-Westville. Her CV demonstrates extensive community service and she has published extensively.
More can be discovered by navigating her facebook page: https://www.facebook.com/asha.ramgobin. She has actively participated at a regional level and at the past 58th Session of African Commission on Human and Peoples's Rights gave an address from the regional NGO Forum that clearly demonstrated her speaking truth to the power. After mentioning our courts had just proven that our President was not above the law, stated: "Ordinary Africans are facing a great betrayal at the hands of other Africans, for a mere thirty coins of silver, which as we know is the amount that Judas took when he betrayed the Messiah, Jesus. For a relatively small amount of money, many African people in positions of power have compromised themselves and developed a system of tax laws, policies and practices that enable big companies and individuals to deprive our governments of billions of USD"
Although appearing to fulfill many of the criteria, we are concerned that Ms Ramgobin lacks the experience of working with government and reports from credible sources indicate that she is an extremely difficult person to work with and often workplace conflict results. She is said to have difficulties making decisions. SA FORUM DOES NOT SUPPORT HER NOMINATION.
Asking the Portfolio Committee members to take our concerns and recommendations into consideration.
Kind regards
Rod Solomons
Convener of SA First Forum