To regulate matters incidental to the establishment of the Human Rights Commission by the Constitution of the Republic of South Africa, 1993; and to provide for matters connected therewith.
'private dwelling' means any part of any building or structure which is occupied as a residence or any part of any building or structure or outdoor living area which is accessory to, and used wholly or principally for, the purposes of residence.
The seat of the Commission shall be determined by the President.
The Commission may establish such offices as it may consider necessary to enable it to exercise its powers and to perform its duties and functions conferred on or assigned to it by the Constitution, this Act or any other law.
The President may, in consultation with the Commission, appoint a part-time member as a full-time member for the unexpired portion of the part-time member's term of office.
Any person whose term of office as a member of the Commission has expired, may be reappointed for one additional term.
A member of the Commission may resign from office by submitting at least three months' written notice thereof to Parliament, unless Parliament by resolution allows a shorter period in a specific case.
such request is approved by the National Assembly and the Senate by a resolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting.
A member of the Commission or a member of the staff of the Commission shall serve impartially and independently and exercise or perform his or her powers, duties and functions in good faith and without fear, favour, bias or prejudice and subject only to the Constitution and the law.
No organ of state and no member or employee of an organ of state nor any other person shall interfere with, hinder or obstruct the Commission, any member thereof or a person appointed under section 5 (1) or 16 (1) or (6) in the exercise or performance of its, his or her powers, duties and functions.
All organs of state shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission.
No person shall conduct an investigation or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary or any other interest which might preclude him or her from exercising or performing his or her powers, duties and functions in a fair, unbiased and proper manner.
If any person fails to disclose an interest contemplated in subsection (4) and conducts or renders assistance with regard to an investigation, while having an interest so contemplated in the matter being investigated, the Commission may take such steps as it deems necessary to ensure a fair, unbiased and proper investigation.
The Commission shall designate a chairperson for every committee and, if it deems it necessary, a vice-chairperson.
A committee shall, subject to the directions of the Commission, exercise such powers and perform such duties and functions of the Commission as the Commission may confer on or assign to it and follow such procedure during such exercising of powers and performance of duties and functions as the Commission may direct.
On completion of the duties and functions assigned to it in terms of subsection (4), a committee shall submit a report thereon to the Commission.
[Date of commencement of s. 5: 17 May 1996.
The Commission may, at any time, approach either the President or Parliament with regard to any matter relating to the exercising of its powers or the performance of its duties and functions.
All organs of state shall afford the Commission such assistance as may be reasonably required for the effective exercising of its powers and performance of its duties and functions.
may bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group or class of persons.
[Date of commencement of s. 7: 17 May 1996.
to rectify any act or omission, emanating from or constituting a violation of or threat to any fundamental right. [Date of commencement of s. 8: 17 May 1996.
through a member of the Commission, administer an oath to or take an affirmation from any person referred to in paragraph (c) , or any person present at the place referred to in paragraph (c) , irrespective of whether or not such person has been required under the said paragraph (c) to appear before it, and question him or her under oath or affirmation in connection with any matter which may be necessary in connection with that investigation.
in the Commission's judgement, such person has refused or is likely to refuse to answer a question or to produce any article or document on the basis of his or her privilege against self-incrimination.
Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of subsection (1) shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before any body or institution established by or under any law: Provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person stands trial on a charge of perjury or a charge contemplated in section 18 (b) of this Act or in section 319 (3) of the Criminal Procedure Act, 1955 (Act 56 of 1955).
Subject to the provisions of subsection (2) (a) (i), the law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law shall apply in relation to the questioning of a person in terms of subsection (1).
Any person appearing before the Commission by virtue of the provisions of subsection (1) (c) and (d) may be assisted at such examination by an advocate or an attorney, or both, and shall be entitled to peruse such of the documents referred to in subsection (1) (c) or minutes as are reasonably necessary to refresh his or her memory.
If it appears to the Commission during the course of an investigation that any person is being implicated in the matter being investigated, the Commission shall afford such person an opportunity to be heard in connection therewith by way of the giving of evidence or the making of submissions and such person or his or her legal representative shall be entitled, through the Commission, to question other witnesses, determined by the Commission, who have appeared before the Commission in terms of this section.
Subject to the provisions of this Act, the procedure * to be followed in conducting an investigation shall be determined by the Commission with due regard to the circumstances of each case.
The Commission shall from time to time by notice in the Gazette make known the particulars of the procedure which it has determined in terms of subsection (6).
The Commission may direct that any person or category of persons or all persons the presence of whom is not desirable, shall not be present at the proceedings during the investigation or any part thereof.
be compelled to produce to the Commission any article or document in his or her possession or custody or under his or her control which may be necessary in connection with that investigation.
[Date of commencement of s. 9: 17 May 1996.
Any member of the Commission, or any member of the staff of the Commission or a police officer authorised thereto by a member of the Commision[sic], may, subject to the provisions of this section, for the purposes of an investigation, enter any premises on or in which anything connected with that investigation is or is suspected to be.
if he or she wishes to retain anything on or in the premises contemplated in paragraph (f) for further examination or for safe custody, against the issue of a receipt, remove it from the premises: Provided that any article that has been so removed, shall be returned as soon as possible after the purpose for such removal has been accomplished.
Any person from whom information is required in terms of subsection (3) (a) , (c) and (e) may be assisted at such enquiry by an advocate or an attorney, or both, and shall at the commencement of such enquiry be so informed.
the right to his or her personal privacy.
or document, which has a bearing on the investigation concerned, is in the possession or under the control of any person or on or in any premises within such magistrate's or judge's area of jurisdiction.
shall only be performed by virtue of a search warrant issued by a magistrate, or judge of the Supreme Court, if it appears to such magistrate or judge from information on oath that there are reasonable grounds for believing that an article or document referred to in paragraph (a) is in the possession or under the control of any person or on or in any premises within such magistrate's or judge's area of jurisdiction.
A warrant issued in terms of this subsection shall authorise any member of the Commission or any member of the staff of the Commission or a police officer to perform the functions referred to in subsection (3) and shall to that end authorise such person to enter and search any premises identified in the warrant.
A warrant issued in terms of this subsection shall be executed by day, unless the person issuing the warrant in writing authorises the execution thereof by night at times which are reasonable in the circumstances.
the purpose for the issuing of the warrant has lapsed, whichever may occur first.
A person executing a warrant under this section shall, at the commencement of such execution, hand the person referred to in the warrant or the owner or the person in control of the premises, if such a person is present, a copy of the warrant: Provided that if such person is not present, he or she shall affix a copy of the warrant to the premises at a prominent and visible place.
A person executing a warrant under this subsection or an entry or search under subsection (6) shall, at the commencement of such execution, identify himself or herself and if that person requires authorisation to execute a warrant under this section, the particulars of such authorisation shall also be furnished.
Subject to the provisions of subsections (2), (3), (4), (5) (g) , (7) and (8), any member of the Commission, or any member of the staff of the Commission or a police officer upon request by a member of the Commission, may, without an entry and search warrant, enter and search any premises, other than a private dwelling, for the purposes of attaching and removing, if necessary, any article or document object of the entry and search.
An entry and search in terms of subsection (6) shall be executed by day unless the execution thereof by night is justifiable and necessary.
A person who may lawfully under this section enter and search any premises may use such force as may be reasonably necessary to overcome any resistance against such entry and search of the premises, including the breaking of any door or window of such premises: Provided that such person shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter and search such premises.
The proviso to paragraph (a) shall not apply where the person concerned is on reasonable grounds of the opinion that any article or document which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.
If during the execution of a warrant in terms of section 10 (5) (b) or a search in terms of section 10 (6), a person claims that an article or document found on or in the premises concerned contains privileged information and refuses the inspection or removal of such article or document, the person executing the warrant or search shall, if he or she is of the opinion that the article or document contains information that has a bearing on the investigation and that such information is necessary for the investigation, request the registrar of the Supreme Court which has jurisdiction or his or her delegate, to attach and remove that article or document for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.
[Date of commencement of s. 10: 17 May 1996.
be filled as soon as practicable in accordance with section 115 (3) of the Constitution.
when a member's resignation, submitted in accordance with section 3 (4), takes effect.
The meetings of the Commission shall be held at the times and places determined by the Commission: Provided that the first meeting shall be held at the time and place determined by the Minister of Justice.
If the Chairperson is absent from a meeting of the Commission, the Deputy Chairperson referred to in section 115 (5) of the Constitution shall act as chairperson, and if both the Chairperson and Deputy Chairperson are absent from a meeting of the Commission, the members present shall elect one from among their number to preside at that meeting.
The quorum for any meeting of the Commission shall be a majority of the total number of members.
The decision of the majority of the members of the Commission present at a meeting thereof shall be the decision of the Commission, and in the event of an equality of votes concerning any matter, the member presiding shall have a casting vote in addition to his or her deliberative vote.
The Commission shall determine its own procedure and shall cause minutes to be kept of the proceedings.
The Commission shall from time to time by notice in the Gazette make known the particulars of the procedure which it has determined in terms of subsection (5).
The remuneration, allowances and other terms and conditions of office and service benefits of the full-time and part-time members of the Commission shall be determined by the President in consultation with the Cabinet and the Minister of Finance.
The remuneration of the members of the Commission shall not be reduced during their continuation in office.
A part-time member of the Commission may, for any period during which that member, with the approval of the Commission, performs additional duties and functions, be paid such additional remuneration as may be determined by the President in consultation with the Cabinet and the Minister of Finance.
Subject to the provisions of subsection (2), the Commission may, with the specific or general concurrence of the Minister of Finance, order that the expenses or a portion of the expenses incurred by any person in the course of or in connection with an investigation by the Commission, be paid from State funds.
Any person appearing before the Commission in terms of section 9 (1) (c) who is not in the public service, shall be entitled to receive from moneys appropriated by law for such purpose, as witness fees, an amount equal to the amount which he or she would have received as witness fees had he or she been summoned to attend criminal proceedings in the Supreme Court held at the place mentioned in the written notice in question.
If a person has suffered damage in the course of the execution of an entry or search warrant in terms of section 10 (5) (a) or (b) or an entry or search contemplated in section 10 (6), under circumstances where no person responsible for the premises was present at the time of the causing of the damage and the damage was caused by force used to gain entry as contemplated in section 10 (8) (a) , the Commission may order that such damage be made good from State funds.
[Date of commencement of s. 14: 17 May 1996.
The Commission may, subject to the provisions of subsection (3), in the manner it deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by it.
In addition to the report contemplated in section 118 of the Constitution, the Commission shall submit to the President and Parliament quarterly reports on the findings in respect of functions and investigations of a serious nature which were performed or conducted by it during that quarter: Provided that the Commission may, at any time, submit a report to the President and Parliament if it deems it necessary.
The findings of an investigation by the Commission shall, when it deems it fit but as soon as possible, be made available to the complainant and any person implicated thereby.
[Date of commencement of s. 15: 17 May 1996.
The records referred to in subsection (1) (c) (ii) shall be audited by the Auditor-General.
the provisions of the Exchequer Act, 1975, and the regulations and instructions issued in terms thereof, as well as the Auditor-General Act, 1989 (Act 52 of 1989).
The chief executive officer of the Commission shall be appointed on such terms and conditions and shall receive such remuneration, allowances and other service benefits as the Commission may determine in accordance with the regulations under section 19.
The other staff of the Commission shall be appointed on such terms and conditions and shall receive such remuneration, allowances and other service benefits as the chief executive officer may determine in accordance with the regulations under section 19.
The Commission may, in consultation with the Minister of Finance, in the exercise of its powers or the performance of its duties and functions by or under this Act, the Constitution or any other law, for specific projects, enter into contracts for the services of persons having technical or specialised knowledge of any matter relating to the work of the Commission and determine the remuneration, including reimbursement for travelling, subsistence and other expenses, of such persons.
[Para. (a) substituted by s. 35 (1) of Act 47 of 1997.
may exercise the powers and shall perform the duties and functions which the Commission may from time to time confer upon or assign to him or her in order to achieve the objects of the Commission, and shall for those purposes be accountable to the Commission.
[Sub-s. (6) substituted by s. 35 (1) of Act 47 of 1997.
The Commission shall be a juristic person.
member of any committee, not being a member of the Commission, shall be liable in respect of anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and submitted to Parliament or made known in terms of this Act or the Constitution.
acts contrary to the authority of an entry warrant issued under section 10 (5) (a) or a search warrant issued under section 10 (5) (b) or, without being authorised thereto under section 10, enters or searches any premises or attaches any article or document or performs any act contemplated in section 10 (3), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.
Any regulation under this section relating to State expenditure, shall be made in consultation with the Minister of Finance.
in general, any matter which is not in conflict with this Act or the Constitution and which is reasonably necessary for the regulation of the terms and conditions of service of members of staff.
[Sub-s. (1) amended by s. 35 (1) of Act 47 of 1997.
This Act shall be called the Human Rights Commission Act, 1994, and shall come into operation on a date fixed by the President by proclamation in the Gazette.