SUBMISSION BY THE DEMOCRATIC ALLIANCE TO THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION
The case against the Department of Women, Children and People with Disabilities
April 2012
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Introduction Background The Department of Women, Children and People with Disabilities (DWCPD) was established by President Jacob Zuma in May 2009. The DWCPD has a mandate to promote the realisation and protection of the rights of women, children and persons with disabilities. Whilst the delivery of programmes to support, empower and develop people with disabilities is shared by various government departments in the social services cluster, the DWCPD is responsible for the overall co-ordination and monitoring of the implementation of the Integrated National Disability Strategy (INDS). The INDS designates the priority areas to be targeted as education and training, employment, income maintenance and social security, and housing. Each of these areas is assigned to a line department for action. The DWCPD has to ensure that all responsible departments carry out their mandate. The poor financial management and inappropriate spending priorities that have become the defining characteristics of the DWCPD and the department’s failure to effectively spend the budgets in its “Rights of Persons with Disabilities” programme can therefore be considered a violation of the rights of South Africans with disabilities. The Human Rights Commission (HRC) has the power to investigate and report on the observance of human rights and take steps to secure appropriate redress where human rights have been violated.
Purpose of this document The purpose of this document is therefore threefold: 1. To outline key challenges faced by people with disabilities in South Africa 2. To present evidence of: (a) the poor financial and administrative management of the DWCPD; (b) the under-spending in the “Rights of Persons with Disabilities” programme; (c) the inappropriate spending priorities of the DWCPD; and (d) other key areas in which the DWCPD failed to deliver on its mandate. 3. To request that the South African Human Rights Commission (HRC) conducts a full investigation into the DWCPD’s failure to deliver on its mandate to improve the lives of disabled South Africans.
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1. Challenges faced by people with disabilities The South African community of people with disabilities continues to face a number of challenges which impact on their equal participation and integration in education, employment, accessibility, social security, family life and personal integrity, culture and sport and recreation. These challenges include the following:
There are about 5 million disabled people living in South Africa, of which only 1.2 million people receive a disability grant1. Research demonstrates that grants for disabled people and the elderly have a significant impact on the incomes of households that receive these grants2. However, disabled people face a range of challenges in accessing disability grants, including difficulties in obtaining medical documents to support their applications. As a result, many disabled people are excluded or go many years without access to a grant that is rightfully theirs. 10.5% of the disabled population has no education. The Right to Education for Children with Disabilities campaign recently revealed that more than 165 000 disabled children are out of school3. The majority of people with disabilities in South Africa are unemployed. Amongst the deaf, the incidence of unemployment is as high as 65%4. Disabled people lack integration opportunities in regular schools. Only 7.1% of disabled people have primary education and just 5.7% have secondary education. Approximately 3.9% of disabled people have higher education5. They therefore lack the skills and experience to compete with able-bodied persons for employment opportunities. There are significant technological challenges to making services accessible to persons with different forms of disabilities in an affordable way. Existing devices and software that allow people with disabilities to interact with ICT systems are prohibitively expensive and have not been designed for the South African context6. Sport and recreation is a vital component in redress and reconciliation. However, disabled people lack equal opportunities to participate in national sporting opportunities to showcase their abilities and compete at the same level as ablebodied people7. 40% of deaf children do not receive cochlear ear transplants because of a lack of funds8.
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South African Social Security Agency, Annual Report 2010/11. Human Sciences Research Council, 2003. Cycle of credit holds low-income households at ransom for food purchases. 3 Community Law Centre, 2012. Right to Education for Children with Disabilities. 4 Development Institute for the Deaf and Blind, 2011. 5 Statistics South Africa, Census 2001. 6 Research Dynamics South Africa, 2000. Situation Analysis of Disability Integration in 18 National Government Departments. 7 Research Dynamics South Africa, 2000. Situation Analysis of Disability Integration in 18 National Government Departments. 8 Helen Zille, 2012. SA Today: No easy medicine for policy nausea. 2
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2. How the DWCPD has failed people with disabilities Poor financial and administrative management of the DWCPD Good financial management is vital to the success of any entity. When government departments or public entities fail to properly manage their resources it inevitably leads to weak service delivery. For every rand lost on fruitless and wasteful expenditure, fewer resources remain to improve people’s lives. In his Medium Term Budget Policy Statement in October 2011, Finance Minister Pravin Gordhan said: “Greater efficiency must also be sought in government cash management and in goods and services procurement … We want to assure our people that we will address inefficiency, extravagance and waste in public administration. As government we see the need for the same principle of moderation to be applied to ourselves as cabinet ministers and other political office bearers. This must also be extended to senior management in the public service and executives of state entities. All of us must share in creating a greater momentum for growth, jobs and investment.” In his budget speech in February this year, Minister Gordhan followed this up with yet another commitment to improve financial management. He said: “We will strengthen financial management in the public sector, pursue value for money with the greatest possible vigour and ensure that taxpayers’ money is well used.” The Department of Women, Children and People with Disabilities has a poor track record in this regard. In the DWCPD’s only annual report, the department did not get a clean audit. Its annual report for the 2010/2011 financial year indicates close to R4 million in unauthorised expenditure and irregular expenditure in excess of R6 million9. The annual report also found a host of deficiencies in the Department’s operational plans. It concluded that there was no logical link between the Department’s objectives, targets and indicators. The Department furthermore did not fully comply with legislation and regulation in setting up its strategic planning, performance management, budgets, procurement and contract management, human resource management, expenditure management, revenue management or internal control requirements. In most cases, the Department seems to fail to comply with proper management practices, as required by the Public Finance Management Act10. Reports received by Parliament’s appropriations committee confirm these findings. During the committee’s last sitting of the previous term, the National Treasury reported back on the DWCPD’s budgetary performance up to the third quarter of the 2011/2012 financial year. The financial management of the department does not seem to have improved. The most concerning statistics from the report to the appropriations committee relate to the Department’s expenditure on salaries for its employees. By the third quarter of the 9
National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year. National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year.
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2011/2012 financial year, the Department had spent 93% of its total annual budget for the compensation of its employees11. That means it has roughly 7% of its budget left to pay for employees for the final quarter of the year. More alarming is the fact that the department still has a vacancy rate of 21%, so it has not got a full staff complement, yet the budget for a full staff complement has already been spent three quarters of the way through the year. If properly managed, the Department should have had more than 25% of its budget left for the final quarter of the year. In some sub-sections of the department, the over expenditure on salaries is much higher. In the administration programme – which seems to be failing dismally based on what the auditors found last year – the over expenditure on salaries reached 112% of the total annual allocation by the end of the third quarter12. This is incomprehensible given the large percentage of vacancies and underperformance in this programme. In March 2011, the vacancy rate in the department was 77%. Even then, there was no significant under-expenditure on salaries in the department. The report to the appropriations committee concludes by saying that the spending rate of the department was of “major concern” to National Treasury and that the Director-General had been instructed to limit further expenditure. It remains to be seen whether the DirectorGeneral will heed this advice.
Under-spending in the “Rights of Persons with Disabilities” programme Despite over-spending on salaries, the DWCPD’s annual report for 2010/11 indicates that R5.6 million of the department’s budget earmarked for the “Rights of Persons with Disabilities” was not spent13 (see table below). Programme Rights of People with Disabilities
Adjusted appropriation R 8.5 million
Actual amount spent R 2.9 million
(Over)/Underexpenditure R 5.6 million
Source: DWCPD Annual Report 2010/11
This represents a 66% under-spending in the disabilities programme. Had this under-expenditure been allocated to a line department that delivers direct services, the following assistive devices, transplants and treatments could have been paid for with the surplus funding: ─ 63 bone marrow transplants (R90 000 for phase 1 to 3); ─ 56 weeks of kidney dialysis treatment (R100, 000 per week for treatment); ─ 28 cochlear implants (R199 000 each, excluding other medical and hospital expenses); ─ Between 25 709 and 37 706 folding cane sticks (priced between R150 - R220 each); ─ Between 43 and 2 262 wheelchairs (between R2 500 and R150 000 each, depending on the person’s individual needs).
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National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year. National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year. 13 Department of Women, Children and People with Disabilities, Annual Report 2010/11. 12
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The most concerning finding by the appropriations committee, as mentioned previously, is that the department is overspending significantly on salaries. It has spent close to its full salary budget for the year after only three quarters, while it still has a vacancy rate of 21%14. Another matter for concern is that the administration programme is overspending on all fronts. The administration programme has spent more than its annual budget in only three quarters, spending 107% of its budget by the end of the third quarter of the 2011/2012 financial year15. The report to the appropriations committee concludes that the department’s overspending is of “major concern” to the National Treasury and that the Director-General had to be called in to reign in expenditure. Treasury expressed particular concerns about the possibility of unauthorised expenditure taking place on large scale. Under-spending in the disabilities programme suggests that the DWCPD could not identify or develop worthy initiatives in support of delivery to the community of people with disabilities. If this is the case, the department should not be allowed to absorb funds intended to benefit people with disabilities.
Inappropriate spending priorities The department’s budget and spending priorities reflect its skewed strategic thinking and priorities:
As previously mentioned, the department spends a disproportionate part of its budget on compensation for employees. The Department is known for its lavish overseas trips. The 2010/11 budget states that R16 million was spent on travel and subsistence in the 2010/11 financial year. Of this, at least R6.8 million was spent on a delegation of 49 officials on a trip to New York in February 2011. This included eight ministers and deputy ministers, who flew business class to New York for two weeks. ─ It was reported that most members of the South African delegation failed to attend many of the sessions of the United Nations gender summit where they were supposed to represent South Africa, and actually spent their time shopping and clubbing in New York16. ─ Delegates stayed at five-star hotels, including the exclusive Ritz Carlton on Central Park, where prices start at R5 500 a night. A return business class ticket on South African Airways costs R81 104 per person, according to the airline. Officials are allowed to travel business class if their destination is more than four hours away17.
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National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year. National Treasury, 2012. Standing Committee on appropriations: 3rd Quarter Expenditure Report 2011/12 Financial year. 16 Sunday Times, 26 March 2011. Five-star junket shock. 17 Sunday Times, 26 March 2011. Five-star junket shock. 15
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The Minister is clearly not concerned with minimising travelling costs. When questioned on her trip, she said it was unreasonable to expect that they stay in a “pondok” and fly “lala-class”18. In October 2011, Minister Xingwana led a group of South African businesswomen on a trip to Chicago, for which flights and travel costs of R64 916 were incurred by the DWCPD. The Department of Trade and Industry contributed a further unknown amount to the event. In 2010/2011 the DWCPD overspent its administration budget by R8.8 million, largely due to the New York trip19. The 2010/11 annual report indicates that over-expenditure throughout the department reached 9.3 million. The amount of money overspent throughout the department outstrips the amount of money spent on the disabilities programme by 323%20. With the 2012/2013 budget allocations for travel and subsistence (R24.9 million), venues and facilities (R3.2million) and catering services (R2.7 million) surpassing the total budget for the disabilities programme, there does not seem to have been a shift in the DWCPD’s priorities21.
Other key areas in which the DWCPD failed to deliver on its mandate
The DWCPD has a responsibility to accelerate “the implementation of international obligations on the rights of women, children and persons with disabilities, especially those sets to which South Africa is a signatory”. South Africa ratified the United Nations Convention on the Rights of Persons with Disabilities and the Optional Protocol on 30 November 2007. This international instrument binds South Africa to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and to ensure that they enjoy full equality under the law. South Africa has not adequately incorporated the Convention into its own legal framework, which weakens the effect of the Convention in South Africa. Without a legal framework, the Convention could at best be used by the courts as an interpretive guideline. Under international law, the implication of the Convention is that the State must submit reports to the UN Committee on the Rights of Persons with Disabilities. State reports to the UN Committee were due within two years of ratification and then every four years subsequently. South Africa missed the deadline for its first report as well as the second extended deadline. The DWCPD has a mandate to “initiate and facilitate the implementation of research and programmes for the empowerment of women, children and persons with disabilities”. The department has, to date, produced no credible research reports on the status of women, children and people with disabilities.
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Die Burger, 21 October 2011, Lulu sê sy sal nie ‘lala’ vlieg en in pondok bly. Department of Women, Children and People with Disabilities, Annual Report 2010/11. 20 Department of Women, Children and People with Disabilities, Annual Report 2010/11. 21 National Treasury, 2012. Estimates of National Expenditure. 19
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3. Requests for investigation by the Human Rights Commission The DA therefore requests that the HRC conducts an in-depth investigation into the financial mismanagement and misappropriation of funds allocated to the “Rights of Persons with Disabilities” programme within the DWCPD and its inability to deliver on its mandate. The DA strongly believes that the department has violated the rights of disabled people in South Africa through the opportunity cost of its inability to deliver on funded mandates. The HRC cannot allow the plight of people with disabilities to remain a “silent crisis” as a result of the inefficiencies of the DWCPD. Insufficient policy intervention and financial investment aimed at empowering the community of people with disabilities and improving their living conditions is a disgrace in a country which claims to be a world leader in progressive democracy and has one of the most liberal and inclusive Constitutions in the world. Vulnerable groups need effective delivery by a government that has its priorities straight. The DWCPD has proved to be capable of little more than underperforming and overspending. Its budget should be redirected to projects that will deliver real relief to needy South Africans. It is the constitutional mandate of the HRC to: a) promote respect for human rights and a culture of human rights; b) promote the protection, development and attainment of human rights; and c) monitor and assess the observance of human rights in the Republic. The Commission has the power to investigate and report on the observance of human rights and take steps to secure appropriate redress where human rights have been violated. The Department for Women, Children and People with Disabilities was established to emphasise the need for equity and access to development opportunities for vulnerable groups within South African society. It is thus, in essence, responsible for the progressive realisation of the basic rights of people with disabilities as citizens of the Republic of South Africa. The department’s failure to deliver on its mandate whilst people with disabilities continue to face significant marginalisation represents an implicit violation of their rights and should be investigated by the HRC.
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