The South African Human Rights Commission is once again embroiled in controversy, with its former chairperson, Lawrence Mushwana, facing fresh allegations of report tampering.
The report in question followed an investigation into alleged anti-semitic comments made by Marius Fransman, the former African National Congress Western Cape chairperson.
The South African Jewish Board of Deputies (SAJBD) filed papers at the Johannesburg High Court two weeks ago requesting a review of the final report, which while identical to the preliminary report in every other respect, makes different findings to that report.
The issue goes back to 2013 when the SAJBD filed a complaint with the SAHRC against Fransman, accusing him of making anti-semitic comments during an interview on a Cape Town radio station.
According to the court papers Fransman said that the Democratic Alliance had given over building contracts historically held by Muslims to the Jewish community.
The SAJBD subsequently asked Fransman to apologise for his “anti-semitic” comments. However, according to the papers, Fransman called for the board to be more patriotic instead, adding that the question should be asked whether they represent South African Jews or the Israeli government.
In a media interview at the time, Fransman was quoted as saying that the Jewish Board should “act South African … not holier than thou,” in response to the SAJBD’s decision to lodge a complaint with the SAHRC.
“The crux of the SAJBD’s complaint was that certain comments made by Mr Fransman in various public appearances … violated the rights to equity and human dignity of Jewish people,” read the SAJBD’s court papers.
Numerous conciliation meetings were held between the two parties. But according to the SAJBD, Fransman continued to make “inflammatory and derogatory statements about the Jewish community”.
Then in December last year the commission’s provincial manager in the Western Cape, Karam Singh, found that “the complainant’s right to dignity had been infringed by Mr Fransman,” and that the ANC provincial head should “apologise … within one month”.
Six months later however, according to the court papers Mushwana contravened the body’s usual protocols to sign off on the final report, finding that the ANC provincial head’s “utterances did not constitute a violation of the Jewish community’s right to equality and dignity”.
The final report neglected to make any recommendations and also referred any appeals to the Equality Court. The parties involved are privy to the preliminary report, and are allowed to comment on it – but the final report stated that Fransman’s comments did not influence the findings.
In the court papers filed, the SAJBD said that it was “clear that the SAHRC acted unlawfully and irrationally in altering its findings and recommendations in the preliminary report”.
“The SAHRC’s findings and recommendations on human dignity were completely altered and no explanation was provided … Consequently the final finding on human dignity is irrational.”
This latest instance is not an isolated one. Last month the Mail and Guardian reported that numerous staff members had voiced their complaints against Mushwana and SAHRC commissioner Lindiwe Mokate, including allegations of report tampering.
At the time a former senior official in the commission cited the investigation into comments made by King Goodwill Zwelithini during the xenophobic attacks two years ago, when Zwelithini accused government of failing to protect locals from the “influx of foreign nationals”.
According to the official, Mushwana took over the case, sidelining everyone he did not trust – including the head of legal affairs, who should oversee most investigations.
“The end result is what many there believe is a sanitised version of the report, which will go down in history as the worst last report for the retiring commissioners,” said the employee. The body is in the process of finalising a new list of commissioners.
But Mushwana denied that anything untoward had taken place and at the time said that he had to take over the investigation because he’d received a flurry of complaints from various parts of the country.
Meanwhile the National Director of the SAJBD would only say that they are privileged to live in a constitutional democracy. “As a result we are seeking a review and setting aside of [Mushwana’s] finding and asking the court to send the matter back to the SAHRC for reconsideration.”
Fransman still awaiting outcome of sexual harassment case
While whether or not Fransman will have to apologise to the SAJBD hinges on the court’s decision, the beleaguered former African National Congress Western Cape chairperson is still awaiting the outcome of a case that involves sexual harrassment charges.
Louisa Wynand, a young woman from Cape Town, accused Fransman of touching her inappropriately and forcing her to share a bed with him while they were on their way to the ANC’s birthday celebrations in the North West in January.
The case docket was supposed to have been handed over to the Northern Cape’s deputy public prosecutor (DPP) more than a week ago, but according to the NPA spokesperson in the Northern Cape, Phaladi Shuping, there were still a few issues that had to be finalised.
“When the DPP received the docket there were a lot of things outstanding and issues that needed further investigation. But as far as we understand the investigating officer is nearly done,” he said.
The ANC sanctioned Fransman by suspending him for five years for alleged sexual harassment.