SAHRC: Cats and Bags

Sins of Omission – Tale of The Missing Page 53

SAHRC ordered by Hon Siraj Desai to investigate possible cases of human trafficking

In Brief

  • Compelled by a High Court judge to do their work properly, South African Human Rights Commission's investigators went to work, and a great work they did
  • But someone somehow tampered with the final report, an entire page went missing while the report was re-arranged
  • Asked to explain, the local SAHRC failed to provide a comprehensive response, while chairman, Adv. Mabedle Lawrence Mushwana just failed to respond to our queries

Could it have been an error of commission or omission? A seemingly-thorough investigation by the South African Human Rights Commission is heading to the drains: the fate of the Commission’s Report submitted to the Western Cape High Court in a strip club fight with the Department of Home Affairs now hangs in the balance. Should we have kept quiet with our own findings and hope against all the odds that those highly-priced lawyers employed by Mavericks would not pick up on the defects? No! Justice is not only served when the system agrees with our views.

In his February 2014 ruling, Judge Siraj Desai of the Western Cape High Court when referring to the suspected cases of possible human trafficking by Mavericks Revue (Cape Town based strip-club), did not communicate in parables: “Though there have been several cases involving Mavericks and I assume that others [judges] have had sight of the contracts into which the dancers are obliged to enter, it appears that it has been blandly accepted that these are exotic dancers, whatever that may mean. The conditions under which the foreign dancers are procured, housed and expected to work makes them susceptible to exploitation. They are in a vulnerable situation and the fact that the person in control of them demands or, at least, expects large sums of money on a weekly basis places him in possible contravention of Article 3 Paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons.”

A few months later, the Commission attempted to present to the courts, results of an investigation, which turned out to have been undertaken under supervision of the club’s management. Lawyers for the Department of Home Affairs blocked the attempt and the judge agreed and ordered the Commission to undertake an independent investigation.

A few weeks after uSpiked’s report that wondered why it had taken the Commission more than two years to complete its investigation, Adv. Mabedle Lawrence Mushwana, the Chairman of the Commission, signed off a copy of the Report and had it delivered to the courts.

There have been several media reports touching on the findings presented by the Commission. It was just too good to be real, so we decided to have a go at it. The most difficult part of investigating a document is the absence of the initial investigators’ working notes.

However, our system picked up some inexplicable and questionable discrepancies with the report. In an attempt to be responsible, we decided to give the Commission time to correct them or explain them, but months later, no such attempts appear to have been made. As we went to production with this report, the Commission had not filed any additional information with the Western Cape High Court despite our concerns having been pointed out to them.

Legal experts we have consulted have explained that the errors in the report could be minor and could simply be rectified by means of sworn affidavits or the Commissioners appearing before the court to be examined and cross-examined by parties involved. However, if not attended to, the errors could grant Mavericks Revue a lifeline in terms of additional time or even the entire report being set aside.

What happened to Page 53?

In our attempts to understand what had happened to the missing Page 53, we sought an audience with Adv. Mushwana who, for reasons known only to himself, failed to respond to our repeated phone calls. How could he, a seasoned advocate, have signed off a report that was technically defective without appending any acceptable explanation?

Suspecting that the real investigations and the Report must have originated from Cape Town, we successfully reached the Commission’s Cape Town senior legal Services officer, Tammy Carter, who gladly talked to us.

In a recorded telephone conversation, she questioned why we were the only team of journalists focusing on the Page 53 issue. While we may not assume to know how other journalists had handled the report, we know that not only did we read through every word of it, but we had some high-tech assistance.

It is normal for readers not to keenly check the paginations of documents or books, but our attention was first drawn to the possible defectiveness of the report when it was clear that the flow got jumpy. This was confirmed by our information-processing application, which marked the affected areas for interrogation.

Just to be certain, we fed several other SAHRC’s previous Reports and Publications into our system in case No. 53 was somehow regarded as a bad-omen number by SAHRC. The results were clear: this was the only report without Page 53.

While denying that the report presented to the High Court had been tampered with, Carter initially claimed that pagination could have been lost during their manual insertions. Manual? What word processing software do they use at the Commission, we asked. Her response was that it is Microsoft Office.

After that confirmation, we pointed out the other inconsistencies with the report. Not only was there the Page 53 omission, the formatting around the missing page had been interfered with.

Page 52 ends with Paragraph 9.2.6 Perks and Benefits. The next noted Paragraph is found on Page 55: Paragraph 9.2.10 - so missing in between are three Bullet numberings (9.2.7, 9.2.8, 9.2.9). For the Bulleting formats to have been lost on Page 54, someone must have physically altered them. How long were they? What was so damaging - or not - in the altered paragraphs that the court had to be denied access to them? And who exactly made the alterations? 

Carter was able to answer only the last of the questions: “So many individuals worked on the report that it would not be easy to identify who exactly ‘edited’ the [suspect] area.” Wrong again. Technology is able to assist in identifying at what point in time the said ‘edits’ were affected and by whom.

The buck however still stops with Adv. Mushwana. He signed them off. If the individuals who made the legally-damaging changes cannot be identified by the Commission, the Chairman may find himself being forced to convince the Western Cape High Court that he did not make the changes himself.


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