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M. H.

Toerien
9 Totius Street
Langenhoven Park
9330
South Africa
23 July 2009

Human Rights Council and Treaties Division


Complaint Procedure
OHCHR-UNOG
1211 Geneva 10, Switzerland
Fax: (41 22) 917 90 11
E-mail: CP@ohchr.org

Dear members

CPMPLAINT OF HUMAN RIGHTS ABUSE AGAINST SOUTH AFRICAN


PUBLIC PROTECTOR

I have laid a complaint against the Free State Provincial Legislature’s Public
Account’s Committee (Scopa) in 1996 with the Public Protector. As this
complaint has since prescribed due to the delay, this complaint does not
relate or requests the Human Rights Council Division to address the original
complaint, but the infringement of my human rights on the grounds that a final
finding has not yet been released after 13 years.
In the process I can not find any closure on the original matter and my career
is adversely affected, also affecting my family.

I have written and faxed a letter, copy pasted hereunder, on 13 July 2009
requesting to release a final finding within ten days, or otherwise make
alternative arrangements with me. I am even prepared to accept the
provisional finding which still contained some mistakes to which I have
responded at the time (several years ago) simply to find some closure. I have
not received any response however – something which severely frustrated
met and lawyers who assisted met pro amigo over the years.

I base my statement that the Public Protector infringes on my human rights on


the following:

• Infringement of my human dignity: Human dignity is listed as a human


right in both the South African Constitution’s Bill of Human Rights
(section 10), and the United Nations Universal Declaration of Human
Rights (preamble and article 1). In the book, Fundamental Rights in the
New Constitution Cachalia and others write: Thus the African Charter
refers to ‘dignity inherent in a human being’ and the Universal
Declaration of Human Rights refers to all human beings ‘born free and
equal in dignity and rights’. Thus the broader use of the term ‘dignity’
clearly connotes the inherent worth of a human being and his or her
humanity. Dignity is impaired if he or she is subject to treatment1 which
1
Fundamental Rights in the New Constitution,: Cachalia A, and others, 1994, p. 34.
is degrading or humiliating or to conduct which treats a person as
subhuman.”

• It also flings in the face of the right to Freedom and security of a person
(section 12 and especially the part that reads s follows: “Everyone has
the right to freedom and security of the person, which includes the right
not to be deprived of freedom arbitrarily or without just cause; not to be
detained without trial; to be free from all forms of violence from either
public or private sources; not to be tortured in any way; and not to be
treated or punished in a cruel, inhuman or degrading way.” (My
bolding). This is echoed in Article 5 of the Universal Declaration, both
references making it equally clear that the scope is not limited to
punishment, but also to treatment. Cachalia and others relate to this:
“…the section seeks to protect persons from seven different modes of
conduct: Torture; cruel treatment; cruel punishment; inhumane
treatment, inhumane punishment; degrading treatment; and degrading
punishment.” 2 In Denmark et al v Greeve the European Commission
on Human Rights included “treatment which grossly humiliates an
individual” as “degrading treatment” 3

• Administrative justice, based on the Common Law principle of natural


justice had not been complied with in matters such as withholding
information that influences my rights (section 32), and just
administrative action that should also be reasonable (section 33). To
wait 13 years for a final finding, despite cost and effort, can in no way
be reasonable. These rights are echoed in the Universal Declaration’s
Articles 8, 21 and 28. In South Africa the case of Administrator of
Transvaal & Others 1989 (4) SA 731 (A) at 753 has laid some ground
rules, which include that enacted prescriptions for employment,
especially “suitability” may not be used arbitrarily, but followed by a fair
procedure. Without a final report of the Public Protector, my CV implies
that for some reason I am unsuitable, and it is hard to change this
perception, if not impossible.

My submissions to the Public Protector as a general had been in my home


language, Afrikaans (one of South Africa’s official languages) and translating
them for in case you would prefer to incorporate this in a possible
investigation in this matter would be an enormous task. I therefore include a
report contained in the ANC’s daily briefing, based on a South African Press
Association report, when I supplemented my first complaint with a second
which is by no means complete or comprehensive, and with important aspects
omitted. A more comprehensive summary, in Afrikaans which may be
understood by Dutch or Flemish staff, is at
http://fotostaatsentrum.posterous.com/openbare-beskermer-0 It is right under a
copy of my latest letter written to the Public Protector.
Before approaching the Public Protector (which only came into being at a later
stage), I first approached the SA Human Rights Commission, who requested
me to submit the matter before the CCMA (which did not, at the time, had
2
Op Cit, Cachalia, p. 37
3
Op Cit, p 40
jurisdiction on matters in a “vacancy” left between the abolishment of the
Industrial Court system and replacement by the Labour Court system.
The Human Rights Commission ignored my appeal, and the CCMA confirmed
the lack of jurisdiction as described above. When the Public Protector was
established as one of the constitutional institutions to protect the upholdment
of the constitution, I immediately approached the Public Protector.

Thank you in anticipation of your interest in this matter.

Yours truly

Herman Toerien

Ref. 7/2 – 0758/95 and


Ref. 7/2-0220/02
M.H. Toerien
9 Totius Street
Langenhoven Park
9330
hermantoerien@iburst.co.za
13 July 2009 Fax 086 503 6551

The Public Protector


Pretoria

Copy: Adv Sune Griesel, Bloemfontein

Complaint: M.H. Toerien / Free State Legislature

Please note that this matter dating from 1996 has not yet been finalized by
your office. A summary is herewith attached.
I clearly understand that the matter has long since prescribed, and it is a
simple matter of getting closure.
The last correspondence I received was dated 3 October 2003 when I was
informed that my file is being transferred back to Pretoria.
An interim finding was made some years ago, to which I had to respond and
which I did. The interim finding to a large extend was a positive finding which
would have gone a long way giving me closure, although it still required some
clarity on matters which I immediately submitted.
Even though not quite satisfactorily, simply in an effort to finally get closure
and prove to people who matter to me that I am not to be blamed for what
transpired, especially in the Scopa hearing, I would settle for the interim
finding to be issued as final report.
I believe it would be clearly understood that the feet dragging in this case over
such an extended period is a gross infringement of my human rights, and I
therefore urgently request that a final report be availed by 23 July 2009,
unless specific arrangements are made with me.
Thank you kindly

M.H. Toerien
(Letter faxed on 13 July 2009, proof can be submitted).

BLOEMFONTEIN April 3, 1998 Sapa

EX-FREE STATE CIVIL SERVANT LAYS SECOND COMPLAINT

Herman Toerien, a former senior civil servant in Bloemfontein,


has laid a second complaint with the Public Protector against the
Free State legislature after the post in which he had acted for
about 18 months was advertised and he was not invited for an
interview.

Toerien petitioned the legislature after the post of deputy


director was filled by a chief administration clerk, Neels van
Rooyen.

He laid his first complaint about two years ago, on the basis
that the legislature had erred by not recommending compensation for
him, and by claiming that he had resigned.

When he heard nothing from the Public Protector he wrote to the


legislature, asking that the finding on his alleged resignation and
other alleged errors in the report of the public accounts committee
be rectified.

Soon after the letter was sent Toerien was advised by his
attorney that the Public Protector had responded, and wanted to
know whether the matter still needed to be addressed. In
anticipation of the Public Protector's intervention, Toerien
withdrew his letter to the legislature.

He subsequently received a letter from the Freedom Front's


Abrie Oosthuizen,Public Accounts committee chair, to
the effect that the legislature stood by its finding on the
resignation issue.

Toerien again approached the Public Protector when he received


a letter from the Speaker's office, which indicated that the
legislature was considering closing the matter due to the delay.

He said on Friday that it appeared that the legislature was not


interested in rectifying mistakes based on evidence to a committee
of the legislature, which evidence he claimed was false.