AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Commission Africaine des Droits de
l’Homme & des Peuples
African Commission on Human & Peoples’
Rights
31 Bijilo Annex Layout, Kombo North District, Western Region, P. O. Box 673, Banjul, The Gambia
Tel: (220) 4410505/4410506; Fax: (220) 4410504; E-mail: au-banjul@africa-union.org; Web www.achpr.org
REPORT OF THE JOINT PROMOTION MISSION TO
THE REPUBLIC OF SOUTH AFRICA
BY
COMMISSIONER SOLOMON AYELE DERSSO
COMMISSIONER LAWRENCE MURUGU MUTE
&
COMMISSIONER RÉMY NGOY LUMBU
03 TO 08 SEPTEMBER 2018
Considered during the [65th] Ordinary Session
of the African Commission on Human and Peoples’ Rights,
held from [24 to 14 May 2019]
in [Banjul, The Gambia]
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
Pg. 3
EXECUTIVE SUMMARY
Pg. 4
1. INTRODUCTION
Pg. 6
1.1. Composition of the Delegation
1.2 Terms of Reference
1.3 Previous Engagements between the Commission and Botswana
1.4 Country Profile
1.5 Methodology
2. FINDINGS
Pg. 11
2.1. Administration of Justice and Correctional Services
2.1.1 Administration of Justice
2.1.2. Prisons and Conditions of Detention
2.2. Institutions for the promotion and protection of human rights
2.3. Economic, Social and Cultural Rights
2.3.1. Unemployment and poverty
2.3.2. Right to Education
2.3.3. Right to Housing
2.3.4. Right to Health and access to healthcare
2.4. Social Transformation and Societal Cohesion
2.4.1. Inequality and economic exclusion
2.4.2. Land rights
2.4.3. Foreign nationals
2.5. Women’s Rights
2.6 Access to Information
2.7. Labour rights
2.8. Rights of Persons with Disabilities
2.9. Extractive Industries
3. RECOMMENDATIONS
Pg. 27
ANNEXES
Pg. 32
-
Annex 1: List of people met during the various meetings
Annex 2: The Agenda of the Mission
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ACKNOWLEDGEMENTS
The African Commission on Human and Peoples’ Rights (the Commission) would like
to express its gratitude to the Government of the Republic of South Africa (South
Africa) for authorizing this Promotion Mission and putting at the disposal of its
delegation all the facilities and personnel to ensure its success, as well as for the frank
and constructive dialogue during the Mission.
In particular, the Commission singles out the Department of International Relations
and Cooperation and the Focal Points who accompanied the delegation throughout
its Mission, for the excellent arrangements put in place which enabled the delegation
to meet a variety of Government and other actors, in order to have a fairly
representative view of the human rights situation in the country.
The Commission also wishes to thank all the representatives from various
Government ministries, independent statutory institutions and other institutions and
individuals that found time to meet with its delegation.
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EXECUTIVE SUMMARY
Further to its mandate under Article 45 of the African Charter on Human and Peoples’
Rights (the African Charter) and following authorization by the Government of the
Republic of South Africa (South Africa), a delegation of the African Commission on
Human and Peoples’ Rights (the Commission) undertook a Promotion Mission to the
Republic of South Africa from 03 to 08 September 2018.
This Promotion Mission, the first of such since its last mission conducted in South
Africa from 25 to 29 September 2001, aimed at engaging State and non-State actors
including organized labour and civil society organizations on the current state of
human and peoples’ rights in the country, promoting the African Charter and its
various Protocols and raising awareness among stakeholders in South Africa about
the work of the Commission.
Two of the main areas on which the Commission engaged with various actors
extensively are, firstly, social transformation and societal cohesion, with many
remaining challenges arising from South Africa’s apartheid history still to be
addressed, including in relation to economic growth and employment, access to land
and the prevalence of violence including gender based violence, violence against
LGBT persons and xenophobic violence. Secondly, the low level of realization of
economic, social and cultural rights, including the low retention rates in education
and the many people still living in abject poverty without sufficient access to housing
and health care, among others. The Commission was also concerned to learn of overcrowding of prisons, estimated at about 135%, which impacts security, health and
safety and management of prisons.
The Delegation appreciated the recognition of the Government of South Africa of the
structural challenges and the lapses in the effort for realizing the promise of the
human rights and freedoms of the Bill of Right of the Constitution and the African
Charter.
The Delegation also commended the legislative, institutional, policy, regulatory and
budgetary measures that have been put in place to enhance the promotion and
protection of these human and peoples’ rights. In particular the Commission took note
of efforts towards a victim-centered justice system, the enhanced recognition and role
of traditional leaders, including in realising access to justice, the efforts towards small
business development and the progressive provisions of the Mining Charter, which
includes, among others, provisions on environmental protection, community
engagement and consent, living standards and housing, as well as leadership
transformation and the development of social and labour plans.
The Commission appreciates the unique place that Chapter 9 institutions and other
independent public institutions such as the Public Protector have come to occupy in
South Africa’s constitutional democracy. Based on these various findings and
4
observations, the Commission made a range of general and thematically specific
recommendations to the Republic of South Africa, including the following:
•
•
•
•
•
•
•
•
•
•
Conduct a comprehensive law reform exercise in order to harmonize laws
that set divergent standards from the 1996 Constitution and the African
Charter, thereby creating uncertainty that hampers the enjoyment of rights;
Expedite the processes for the enactment of draft laws including the
Prevention and Punishment of Hate Crimes Bill, as well as the ratification
and domestication of treaties which have the potential to improve the
enjoyment of human rights;
Initiate a national dialogue and multidimensional action plan for
addressing the challenges of racialism, socio-economic inequality and
weakening social cohesion;
Address the challenges in the administration of justice for effectively
resolving the high rate of crimes and violence in South Africa;
Take urgent measures and adopt a multi-sectoral approach towards closing
the gap between the labour standards in the country and the reality of the
majority of South African workers;
Address the challenges of poverty and inequality including through the
implementation of the country’s target to eliminate poverty by 2030 as
envisaged in its National Development Plan;
Improve strategies for youth employment, skills development and develop
sustainable strategies for access to higher education for all who qualify;
Make available sufficient funding for one stop centres for GBV, Sexual
Offences Courts and shelters for women;
Development of a comprehensive action plan on GBV, taking account of the
role of perpetrators in ending GBV and with a victim/survivor centred
approach to combatting GBV; and
Raise the standard of primary education through investing in teacher
education and continuous training, school infrastructure and learning
materials.
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1. INTRODUCTION
1.1 Composition of the Delegation
1. The Commission’s Delegation comprised the following:
i.
Commissioner Solomon Ayele Dersso, Commissioner Rapporteur on the
human rights situation in the Republic of South Africa and Chairperson of the
Working Group on Extractive Industries, Environment and Human Rights
Violations in Africa;
ii.
Commissioner Lawrence Murugu Mute, Vice-Chairperson of the Commission
and Special Rapporteur on Freedom of Expression and Access to Information
in Africa;
iii.
Commissioner Rémy Ngoy Lumbu, Special Rapporteur on Human Rights
Defenders and Focal Point on Reprisals in Africa; and
iv.
Ms. Abiola Idowu-Ojo, Ag. Deputy Secretary, Ms. Estelle Nkounkou, Legal
Officer, from the Secretariat of the Commission; and Ms. Winfred Gakii Mbae,
assistant to the Vice Chairperson, who provided technical support to the
Delegation during the Mission.
•
Terms of Reference
2. The Terms of Reference of the Mission to South Africa were as follows:
i.
To promote the African Charter and the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo
Protocol) through the exchange of views and sharing of experiences with the
Government of the Republic of South Africa, and the main stakeholders
working in the field of human rights, on how to improve the enjoyment of
human rights in the country;
ii.
To assess the level of enjoyment of civil and political rights, economic, social
and cultural rights as well as collective rights of the people, as well as
measures taken by the Government to implement human rights;
iii.
To seek information on human rights issues of particular concern to the
Commission, including the continued high levels of inequality and
unemployment; access to land; transformation of the education system; access
to health care and HIV/AIDS;
iv.
To seek information and engage on the rights of women focusing on ways to
address sexual, gender based and domestic violence;
6
v.
To engage with all affected stakeholder on existing and current challenges for
human and peoples’ rights in the extractive industries sector and ways of
addressing them;
vi.
To gather information and engage in dialogue with relevant agencies on the
status and treatment of African migrants in South Africa;
vii. To gather information and exchange views with relevant agencies on freedom
of expression and access to information;
viii. To gather information on the situation of human rights defenders and discuss
the challenges that hamper the effective enjoyment of their human rights;
ix.
To engage in discussion on the roles of the judiciary (in the protection and
defence of human rights and issues facing it) the legislature and the
independent oversight or protection bodies including Chapter 9 institutions;
x.
To visit prisons to assess the extent to which conditions of detention comply
with regional and international standards, and hold discussions with prison
administrative officials and other stakeholders on all issues relating to
detention and on the work of the Commission on this theme;
xi.
To raise awareness on the activities of the Commission in South Africa,
especially among relevant Government departments, institutions and Civil
Society Organizations (CSOs); and
xii.
To follow up on the recommendations made in the Concluding Observations
of the Combined State Report of South Africa adopted by the Commission
during its 20th Extra-Ordinary Session in February 2016.
1.3 Previous Engagements between the Commission and South Africa
3. The present mission was the third (3) mission to South Africa. Previous missions
had been undertaken as follows:
i.
Promotion Mission by Commissioner Andrew Ranganayi Chigovera, the
Commissioner responsible for the human rights in South Africa from 25 to
29 September 2001; and
ii.
Mission by Commissioner Vera Mlanguzwa Chirwa, the Special
Rapporteur on Prisons and Conditions of Detention, from 14 to 30 June
2004.
4. South Africa’s Initial Periodic Report, covering the period 1996 to 1998 was
presented during the Commission’s 25th Ordinary Session held in April 1999 and
the Concluding Observations were adopted at the same Session. South Africa
7
presented its first periodic report, covered the period from 1999 to 2001, and the
Concluding Recommendations were adopted during the Commission’s 38th
Ordinary Session in 2005. Its second report, combining the third to sixth reports
(2002-2013), was considered during the Commission’s 58th Ordinary Session in
February 2016. The second combined report also contained a report on the Protocol
to the African Charter on the Rights of Women in Africa (Maputo Protocol). The
Commission’s Concluding Observations were adopted during the Commission’s
20th Extraordinary Session in June 2016.
5. To date there have been three cases against South Africa before the Commission
which were finalised:
i.
Communication 255/02 Garreth Anver Prince v. South Africa;
ii.
Communication 335/06 Dabalorivhuwa Patriotic Front v. Republic of South
Africa; and
iii.
Communication 409/12 Luke Munyandu Tembani and Benjamin John
Freeth (represented by Norman Tjombe) v Angola and Thirteen Others.1
6. While all three cases were heard on the Merits, the Commission did not in any of
the cases find a violation of the African Charter.
1.4 Country Profile
7. South Africa is a constitutional democracy. The Constitution of the Republic of
South Africa, 1996 is the supreme law of the land, and the Constitutional Court of
South Africa is the guardian of the Constitution. The South African Constitution
provides for the rule of law, a separation of powers, and principles of human
dignity, equality and the achievement of human rights and freedoms.
8. South Africa is governed on the basis of the principle of co-operative governance.
The South African Constitution provides for national, provincial and local spheres
of government which are distinctive, interdependent and interrelated. Each sphere
of government is expected to exercise their powers and perform their functions in
a manner that does not encroach on the geographical, functional or institutional
integrity of government in another sphere.
9. At the national level, the Executive consists of the President, Deputy President,
Cabinet and the State departments in charge of policy and administration. South
Africa comprises nine provinces and 278 municipalities, comprising eight
metropolitan, 44 district and 226 local municipalities. Each of the nine provinces
has an elected legislature and its own executive council. Municipalities are mainly
focused on growing local economies and providing infrastructure and services.
10. Parliament, the national legislative body, consists of the National Assembly and
the National Council of Provinces. The National Council of Provinces, a structure
1
Angola; The Democratic Republic of the Congo; Lesotho; Malawi; Botswana; Mauritius; Mozambique;
Namibia; South Africa; Seychelles; Swaziland; Zambia; Zimbabwe; United Republic of Tanzania.
8
designed to create a joint forum for South Africa’s nine provinces, consists of equal
representation from the provincial legislatures. Both houses are responsible for the
passing of legislation, nationally and provincially, respectively. In specific cases,
local government representatives also participate in debates in the National
Council of Provinces, but they may not vote.
11. South Africa has an uncodified legal system based on a combination of legislation,
case law, common law, custom, old writers and indigenous law. The South African
Constitution provides for an independent judiciary, subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.
12. The Constitutional Court is the highest court in the land, and is the ultimate court
on constitutional issues. Chapter 8 of the Constitution in addition provides for the
following courts: the Supreme Court of Appeal; the High Court of South Africa;
the Magistrates’ Courts; and any other court established or recognised in terms of
an Act of Parliament, such as the Labour Court and the Labour Appeal Court.
13. At the African Union level, South Africa has not yet ratified the Convention for the
Protection and Assistance of Internally Displaced Persons in Africa, Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Older Persons or
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Persons with Disabilities. Although South Africa is a State Party to the Court
Protocol, it has not made the declaration under Article 34(6) which would allow
individuals and NGOs direct access to the Court.
1.5 Methodology
14. During the Mission, the Delegation held discussions with various State and nonstate actors (see Annex 1) involved in the promotion and protection of human and
peoples’ rights in South Africa, including:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
The Department of International Relations and Cooperation (DIRCO);
The Department of Justice and Correctional Services;
The Department of Home Affairs;
The Department of Mineral Resources;
The Department of Labour;
The Department of Social Development;
The Department of Health;
The Department of Higher Education and Training;
The Department of Basic Education
The Department of Human Settlement;
The Department of Rural Development and Land Reform;
The Department of Cooperative Governance and Traditional Affairs;
The Department of Small Business Development;
The Independent Electoral Commission;
9
xv.
xvi.
xvii.
xviii.
xix.
xx.
xxi.
xxii.
The Information Regulator;
The South African Human Rights Commission;
The Commission for Gender Equality;
The South African National AIDS Council;
The Congress of South African Trade Unions;
The South African National Editors’ Forum;
The New Partnership for Africa’s Development; and
Representatives of civil society organizations working in South Africa.
15. The delegation also visited the Kgoši Mampuru Prison, in Pretoria, and concluded
the Mission with a press conference.
16. The delegation was unable to pay a courtesy call on the President of South Africa
as requested in its program, and in line with the best practice of the Commission.
17. Additionally, the delegation was not able to meet with the following Government
and other officials, owing to conflicting engagements, time constraints and
cancellations of appointments:
i.
ii.
iii.
iv.
v.
The Speaker of the National Assembly;
The Chief Justice of South Africa;
The Minister of Women in the Presidency;
The Public Protector;
The Independent Communications Authority of South Africa.
18. Due to time constraints, the delegation was unable to meet with Representatives
of Political Parties in line with its practice and was also not able to visit the
Pollsmoor Prison in Cape Town, as planned.
10
2. FINDINGS
19. The mission lasted for six (6) days during which the delegation visited various
offices within the capital cities of Pretoria and Johannesburg, as well as the Kgoši
Mampuru Prison. During the mission, the delegation had the opportunity to meet
and interact with a cross-section of relevant stakeholders.
20. The interaction that the Delegation had with a wide segment of relevant
stakeholders gave it valuable insights about the human rights situation in the
country. This forms the basis of the following observations
21. Overall, the Delegation observed the impact that the legacies of colonialism and
apartheid continue to have in limiting the enjoyment of the rights and freedoms
guaranteed in the African Charter and the Bill of Rights of the 1996 South African
Constitution. The Delegation appreciates the recognition by the Government of
South Africa of the structural challenges and some of the lapses in the effort for
realizing the promise of the human rights and freedoms of the Bill of Right of the
Constitution and the African Charter. The Delegation commends the various
legislative, institutional, policy, regulatory and budgetary measures that have
been put in place to enhance the promotion and protection of these human and
peoples’ rights.
22. Based on the interviews conducted and the information obtained by the Delegation
during its exchanges with various stakeholders, the findings of the Mission are
discussed below, taking into account the Mission’s Terms of Reference.
2.1. Administration of Justice and Correctional Services
2.1.1. Administration of Justice
23. The Delegation noted with appreciation the initiatives being taken towards
enhancing the administration of justice including the expansion of the
infrastructure of the justice sector, and the establishment of the National Efficiency
Enhancement Committee comprising the key role-players, to promote the
efficiency and effectiveness of the justice system, including enhancing the
autonomy of the courts. Nevertheless, the Delegation also noted the slow pace of
transformation of the justice system and the disparity between expectations set
with progressive legislation and the prevalent inadequacies South African’s
experience in the delivery of justice.
24. The Delegation learnt about efforts towards a victim-centered justice system,
including through the review of the Victims’ Service Charter, new efforts to deal
with the rehabilitation of victims of atrocities, as well as a partnership with the
University of South Africa to review the restorative justice system as a forwardlooking, preventative response that strives to understand the crime in its social
context and be able to deliver justice and ensure that offenders make restitution to
11
society for their crimes. The Delegation was however also informed of inadequate
handling of complaints by the police particularly those relating to gender -violence
including rape and the unavailability of victim-centred facilities and services that
guarantee privacy for women-victims.
25. The Delegation also learnt that the Equality Courts are fully operational, and have
issued verdicts and granted awards. Yet, some of the Magistrate Courts need to be
sensitized on their dual roles as Equality Courts. The Delegation was concerned to
learn that the Department of Justice had to close some courts and is struggling to
sustain its relevant personnel and legal aid program, due to financial strain. The
Delegation is also concerned that attacks against human rights defenders were not
handled properly with inconclusive or inadequate investigation and follow up on
reports of such attacks.
26. The Delegation took note of the role of traditional leaders on access to justice
through the Divisional Courts Bill. Divisional Courts serve as traditional dispute
mechanisms which use alternative dispute resolution mechanisms. They do not sit
over formal civil cases falling within the ambit of legislation or serious criminal
offences and citizens can choose or opt out of their jurisdiction.
27. The Delegation welcomed the effort for addressing the spatial disparities in access
to justice affecting historically disadvantaged sections of society including through
rezoning administrative areas to facilitate access. It also commended the
establishment of the Commission of Inquiry into State Capture. The Delegation
was concerned to learn of the challenges of South Africa’s implementation of the
Rome Statute on the International Criminal Court due to the conflict between some
of its provisions and long established customary international law rules on
diplomatic immunity, but takes note that the matter has been referred to the
Assembly of State Parties to the Rome Statute for clarification.
28. The Delegation noted that the State was yet to ratify relevant human rights
instruments such as the OPCAT to address the issue of torture in detention centres,
meanwhile it was paying out a lot of money – over 4 billion Rand – in
compensation on torture claims.
2.1.2. Prisons and Conditions of Detention
29. The Delegation was concerned to learn of the over-crowding of prisons, estimated
at between 103 to 135 percent and, which impacts security, health and safety and
management of prisons and impedes rehabilitation of prisoners. The Delegation
was informed that the criminal justice system is overburdened on account of the
high rate of crimes in the country. It has been informed that efforts were underway
to reform the system including through the creation of national task teams and
engagement with external actors to address the challenge of inadequate
infrastructure. The Delegation was informed that 24 percent of detainees are
12
remand detainees and those awaiting sentencing. The delegation was informed
that 10 percent of prison inmates are female.
30. The Delegation took note of good practices in that there are measures in place to
follow up on prisoners upon their release, towards facilitating their social reintegration. The Delegation was further informed that prisoners have the right to
vote in elections. In relation to parole, it was indicated that once prisoners have
finished half of their sentences, their cases are reviewed for purposes of parole.
31. In relation to the Kgoši Mampuru Prison visited by the Delegation, it was noted
that the prison separates and makes provision for new admissions, as well as the
sick and aged persons, and there is a separate youth section in the prison, holding
youth between the age of 21 and 25 years. The Delegation took note of the fact that
there is an internal complaints mechanisms for inmates where their rights are
violated, through a register where complaints are logged, including complaints
against the prison officials. The Delegation was informed that there are regular
visits from the management, with whom prisoners can lodge their complaints
directly. Lawyers visit the prison on a weekly basis, and inmates can also have
their own lawyers. The Delegation was pleased to note that the prison is equipped
with video and audio equipment, so that in remand cases where it is not safe to
take prisoners to court and where their crimes are not bailable, they can appear
before different Magistrate Courts through these electronic means.
32. The Delegation further took note of the protection of socio-economic rights of
prisoners in the Kgoši Mampuru Prison. The Delegation was informed that where
prisoners show signs of depression and have suicidal tendencies, they are taken
out of the communal cells and may be kept in the office for observation. They
further noted that the Prison officials work with hospitals in this regard, and also
has a psychologist who visits the prison once a month. The Delegation was
informed of the balanced diet provided to prisoners and also that offenders with
certified medical needs are provided with a special diet upon doctor’s prescription.
33. The Delegation learned that while HIV testing is not mandatory, in general, every
person admitted is tested and if they test positive, are provided with treatment.
Inmates are also tested for tuberculosis (TB) upon arriving at the prison. Doctors
from private hospitals visit the prison weekly to perform circumcisions for
prisoners who request it. The prison does not have facilities for infants as a result
of which young mothers are transferred to prison in Johannesburg. The babies are
separated after 2 years. The Delegation was informed that there is provision for
persons with physical disabilities, including a ramp from the main gate and an
elevator within the building. the Delegation was also informed that there are
orientation and social programmes, spiritual and psychological counselling, and
workshops and short courses where inmates learn skills and are prepared towards
their release. Educational opportunities are also available, subject to available
funding.
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2.2. Institutions for the promotion and protection of human rights
34. The Delegation expressed appreciation for the unique place that independent
public institutions supporting democracy (Chapter 9 institutions) such as the
Public Protector have come to occupy in South Africa’s constitutional democracy.
It recognized the indispensable role of these institutions in the promotion and
protection of human rights in South Africa and it underscored the need for
enhanced support and collaboration from the government for their enhanced role.
35. The Delegation noted with pleasure that Chapter 9 institutions meet regularly
under the Forum for Institutions Supporting Democracy, which allows these
institutions to share information, solicit and provide support for each other’s
mandate and collaborate.
36. The Delegation welcomed the establishment of the Information Regulator. The
Delegation learnt that the Protection of Personal Information Act (POPIA) was yet
to be fully promulgated, and that the Information Regulator was not yet staffed
and was working with seconded staff from the Department of Justice, while
recently having received approval for the establishment of its administration. It
was noted that the Regulator had put business processes and systems in place,
which was expected to take effect before the end of 2018, and following which all
public and private bodies would have only one year to comply with the POPIA.
The Delegation was also informed that at the time of its visit the Regulator had
already received a total of three hundred and thirty-five (335) complaints since its
establishment, even without the POPIA being fully promulgated.
37. The Delegation took note of the key educational initiatives of the Independent
Electoral Commission, including partnerships with national broadcaster to
develop and broadcast civic and voter education programming via TV and radio,
partnerships with other media to promote voter registration and awareness, faceto-face education events with eligible voters around the country, Schools
Democracy Week and publication of voter, democracy education material in all
official languages, including in braille and audio.
38. The Delegation applauded the possibility for political parties to register for
elections online. It also welcomed the possibility for voters to apply for special
votes online and via SMS, confirm and change their address details online and the
availability of results online and via an App.
39. The Delegation also took note of the important work done by the South African
Human Rights Commission in monitoring the implementation of human rights,
and educate the public about human rights, including through embedding the Bill
of Rights in the school curriculum.
40. The Delegation took note of key concerns raised by the South African Human
Rights Commission, the Gender Equality Commission and other Chapter 9
14
institutions related to inadequate human and financial resources, relative to their
respective mandate and societal expectations.
2.3. Economic, Social and Cultural Rights
2.3.1 Unemployment and poverty
41. The Delegation took note of the lack of enjoyment of socio-economic rights
resulting from the racial, spatial and gendered nature of poverty and inequality in
South Africa, as well as the continuously high rate of unemployment in the country
especially among the youth The Delegation also noted the current difficult
economic climate in the country and attendant fiscal measures with potential
adverse impacts on the poor and vulnerable sections of society. The Delegation is
concerned by the high rate of unemployment at 27 percent.
42. On the state of the economy and related employment and labour issues, the
Delegation commended the legislative, policy, institutional and budgetary
measures that have been put in place for addressing the persisting high-levels of
inequality, unemployment and poverty affecting historically marginalized and
discriminated sections of society particularly Blacks and women. The Delegation
was informed that the Government was in the process of retrenching workers –
about 30,000, and also reducing the minimum wage through the initiation of the
Reduction of Minimum Wage Bill, thus exacerbating the socio-economic hardship.
43. The Delegation in particular recognized the initiatives for expanding access to
housing and education and enhancing socio-economic wellbeing of the poor and
vulnerable groups including through support to small businesses and the informal
economy, conscious and deliberate social development measures including
various social security and social protection policies and programs.
44. The Delegation took note with appreciation of the work of the Small Enterprise
Finance Agency (SEFA) and the Small Enterprise Development Agency (SEDA),
which provide a wide range of services from business planning through to access
to credit. SEFA also dispenses with the burden of the formal requirements for
collaterals for loan procurement for start-up businesses. Cooperative grants were
noted to be up to R250,000, and open to all sectors, but most of the clients are from
the Agricultural sector due to the historical legacy of the country.
2.3.2 Right to Education
45. The Delegation was informed of major challenges affecting the education sector
with only about 3 percent of students enrolled in Grade 1 completing university
education. The Delegation is concerned by poor quality of basic education, which
is reflected in South Africa’s literacy/numeracy level being ranked very low in
Africa and internationally. Challenges were also noted in relation to staff shortages
as well as inadequate teaching materials. The Delegation was informed of recent
positive developments, including a positive court judgement on access to
15
education for undocumented learners, and the adoption of a charter for children’s
basic education.
46. The Delegation took note that access to education in the rural areas is bolstered
through multi-grade teaching schools, which refers to the teaching of children of
different grade levels at the same time in the same setting; the provision of
transportation and the efforts to merge schools into boarding schools to improve
and harmonize standards and access. Other efforts at promoting access to basic
education include school fees waiver and school nutrition programs that provide
one nutritious meal in schools in the poorest communities.
47. The Delegation was informed that in relation to HIV/AIDS and Tuberculosis
management in schools, because of the prevalence, Government policy shifted
from prevention only to incorporated access to Sexual and Health Rights to
learners in schools, including scripted sexuality lessons, HIV testing services and
provision of condoms. In terms of the disparity in laws on age of consent on these
issues, parents are sensitized and their consent sought.
48. The Delegation noted with concern the inadequate transformation of the higher
education sector in achieving equitable representation in the academia of Blacks,
in reviewing the curricula and access to higher education including representation
and participation of historically marginalized sectors of society particularly Blacks,
female students and other marginalized groups in post-graduate studies.
49. The Delegation noted with appreciation the measures taken by the government to
increase access to higher education and enhance retention in schools and the
accompanying budgetary commitment including through the provision of
bursaries to students from low-income households. It also noted the improved
management of the National Student Financial Aid Scheme, which provides aid to
students from poor and working-class families in a sustainable manner that
promotes access to, and success in, higher and further education and training, and
which covers approximately 60% of the enrolled students, despite various
remaining challenges including timely availability of the support from scheme.
50. The Delegation was briefed on various efforts by the Government to improve
access to higher education, including through: the introduction of financial
assistance in the form of bursaries to students from low-income households which
covers free registration and tuition, and the provision of allowance for textbooks,
accommodation and feeding.
51. The Delegation took note of efforts being made at redressing the racial imbalance
in the number of black university professors including through: the adoption of
the Staffing South Africa’s Universities Framework which is a comprehensive,
transformative approach to developing future generations of academics and
building staff capacity, and its component New Generation of Academics
Programme (MGAP), which is a prestigious programme that involves the
16
recruitment of highly capable scholars as new academics. The Delegation also took
note of the initiation of the Transformation Managers’ Forum, which includes the
designation of transformation managers of higher institutions and the use of
affirmative actions, including in the areas of gender and persons living with
disabilities (PWDs).
2.3.3 Right to housing
52. The Delegation expressed concern about continuous historical imbalance in access
to housing and high incidence of evictions. The Delegation was informed that the
demands for housing/human settlements far outweigh the supply due to the
historical imbalance in housing in the country. It was reported that while about 4.3
million South Africans have benefitted from the human settlement program, about
5 percent of the population (over 2.4 million) are without adequate shelter and
basic services and another 900,000 live in backyard shelters without basic services.
53. The Delegation was further informed that South African laws prohibit forced
evictions without the appropriate court order, including in cases of non-payment
of rent. It was also noted that there are no Government-led or Governmentsanctioned evictions, and that any Government relocation or resettlement must be
by court order and subject to preconditions such as extensive consultations,
including where related to mining concessions.
54. However, the Delegation was also informed of eviction of communities involving
the South African Defence Forces and the non-implementation of court orders
declaring the eviction illegal.
55. Furthermore, the Delegation took note of the fact that the under-employed and
under-skilled rural workers are fleeing to the urban informal settlements, which
has also increased the reasons for evictions, thus creating a vicious cycle.
56. The Delegation noted that the Government provides about US $2 billion annually
to address the issue of housing and employs diverse options towards facilitating
access to housing for all. The Delegation noted that the Government had put
together a National Human Settlement Master Spatial Plan, aimed at coordinating
tangible public and private investments in the housing sector, towards a
sustainable response to the housing challenge.
2.3.4. Right to health and access to healthcare
57. The Delegation welcomed efforts towards addressing some harmful traditional
practices including through the Customary Initiation Bill (2018). The Delegation
noted the commitment and efforts of traditional leaders in relation to human
rights, including through the INDABA dialogue of 2017 which was convened to
review harmful traditional practices and inform national policy formulation.
Efforts have also been made to address the issue of customary initiation through
17
the Customary Initiation Bill (2018), which seeks to put human rights and health
safeguards in place, while preserving culture.
58. The Delegation took note of the continually high levels of HIV in South Africa. In
2018, 7, 700, 000 people were living with HIV in South Africa and the HIV
prevalence, among adults (15–49 years) was 20.4 percent. HIV disproportionally
affects women (62.67%) and new HIV infections occurred more among young
women than young men, but HIV treatment was also higher among women (65%)
than men (56%). The Delegation noted that there are challenges for people with
tuberculosis (TB) in prisons regarding access to treatment and HIV/AIDS is still
regarded as a shame and weakness by men. The Delegation however also took
note of the existence of a National Strategic Plan to fight HIV and the particular
attention given to vulnerable groups, notably, sex workers, drugs users,
undocumented persons and LGBT persons.
59. The Delegation was informed of a high rate of infanticide in cases where children
are born intersex, and also that non-consensual and medically unnecessary
procedures were performed on intersex infants to make them appear more
typically male/female – cause irreversible harm throughout life, including
incontinence and urinary problems, lifelong scarring, pain, dependency on
medication such as hormones, loss of sexual pleasure and a host of issues related
to sexual and reproductive health, as well as psycho-social consequences.
2.4. Social Transformation and Societal Cohesion
2.4.1. Inequality and economic exclusion
60. The Delegation was informed of the trend of the growing inequality in South
Africa, and the recent decisions of the government to increase the value added tax
(VAT) and the rise in the cost of basic utilities like electricity and water, which
particularly affects the poor. The Delegation also took note of the racial dimension
of poverty, and the specific the socio-economic challenges facing the youth,
including in relation to education, in particular tertiary education, and the high
levels of unemployment among the youths, even with university degrees. The
Delegation noted the continuing issue of inequality and racism, which because of
the country’s history remains a major challenge, which is further perpetuated by
the nature of the economic structure of the country which reflects inequalities
along racial lines and economic status. This has resulted in rising challenges of
deteriorating race relations and societal cohesion.
61. The Delegation expressed concern about the persistent high level of inequality and
poverty, with more than half of the population living in poverty and the top 1
percent of South Africans reportedly owning 70.9 percent of the nation's wealth.
Furthermore, the Delegation took note of the slow pace of transformation of the
economy, the disposition of business for maintaining the prevailing status quo of
the economy. The Delegation is also further concerned that this situation
18
contributed to state capture and is compounded by high levels of corruption,
resulting in the State institutions being unable to effectively deliver towards
transformative outcome.
62. The Delegation took note of measures by the South African Government to address
inequality, through deliberate measures to provide affirmative action to
vulnerable groups, based on the principle of inclusivity, which guides all
Government agencies. In this regard, the Delegation was informed of the policy of
Black Economic Empowerment, which is a programme launched by the South
African government to redress the inequalities of apartheid by giving Black
(Blacks, Coloureds and Indians) South African citizens economic privileges. The
Delegation also received information about the Preferential Procurement Policy
Framework Act (PPPFA), which provides for the implementation of a
procurement policy for a category of preference in awarding contracts, and for the
protection and/or advancement of persons or categories of persons disadvantaged
by unfair discrimination. The PPPFA stipulates a preference point system for the
procurement of goods and services, with a view to strengthen the contribution of
small, medium and micro-sized enterprises (SMMEs).
63. The Delegation expressed concern about the high rates of crime and violence
which negatively impact the rights to life, personal security and socio-economic
well-being of citizens, as well as the democratic process. The Delegation in
particular took note of the violence, including sexual and gender-based violence
against women (see section 2.5 below), violence and discrimination against the
LGBTI community and recurrent xenophobic attacks involving violence and
threats of violence against foreign nationals, particularly those from other African
countries.
2.4.2 Land rights
64. The Delegation was informed that in the past, the loss of the land was the loss of
livelihood, and also resulted in the legacies of disparities in infrastructure, on
which basis the tripartite challenges of the highest level of inequality, of poverty
and unemployment exist in the country. The Delegation took note of the eviction
of farm workers and other human rights abuses affecting farm workers and
incidents of farm attacks. The Delegation is concerned by the slow pace of, and
uncertainties around, the land reform process in South Africa, as available
statistics of individually owned or registered land indicates that Blacks own just
about 4 percent out of the 39 percent of land in individual possession.
65. The Delegation was informed that in the 2016 mid-census conducted, 2.33 million
households were involved in agriculture, and of those, for 43 percent agriculture
is their main source of food, and for another 37 percent, it is an extra source of
food. The Delegation learned that no matter how rudimentary and informal, such
household level agriculture is working for socio-economic upliftment. In terms of
the formal category of farmers, there are an estimated 2 million subsistence
19
farmers; 250,000 Blacks are semi-commercial farmers, involved loosely in value
chains; and there are 24,000 commercial farmers of which about 6,000 to 10,000 are
mega-farmers who control 80 percent of food produced for the market. The
Delegation was further informed that access to land through expropriation
programmes suffer from the issue of racial segregation and access to land, and
non-cooperation by most landowners, including through the escalation of land
prices, in the absence of the power to expropriate.
66. The Delegation took note of the various challenges to effective land reform,
including that while the Constitution provides an opportunity for expropriation
and compensation, there are definitional and interpretation challenges, as well as
resultant systemic problems in implementing land reforms. The Delegation took
note of the 1975 law on expropriation, pre-dating the Constitution, which was
designed for apartheid expropriations, was based on market value compensation
and material loss, and is supported by over 40 years of jurisprudence; vis-à-vis the
post-1994 expropriation law, based on just and equitable compensation, using five
criteria, and the Constitutional provision, both of which have been narrowly
interpreted by the Courts.
67. In interpreting expropriation, the Delegation was informed that the Courts have
used market value and discarded the other four considerations provided in the
Constitution, which thus allows for unlimited projections of market value, even
where the land is not in use. Hence, the Delegation was informed of the
Government’s position that the Constitution in itself is sufficient to address the
issue and that there is a need to provide clarity on how these factors weigh against
one another and what other actions are needed, including as may be necessary, a
constitutional review for clarity, as opposed to working with the intent of the
drafters of the Constitution and other problematic interpretations.
68. Accordingly, the Delegation supports the recognition by the State of the
imperative of land reform and the on-going initiative to this end for amending
Section 25 of the Constitution following democratic processes and the principle of
legality, without endangering agricultural productivity and food security.
69. The Delegation welcomed the Traditional and Khoisan Leadership Bill which aims
to recognize Khoisan leadership structures and communities not yet addressed in
law and ensure uniformity in the way traditional matters are handled; and also
seeks to audit and regulate the traditional leadership structures. It was however
noted that there are concerns that this Bill will entrench apartheid-style boundaries
that divide people along ethnic lines, which historically fostered division among
the black majority.
2.4.3. Foreign nationals
70. The Delegation took note that, there were increasing numbers of protests/unrests
due to frustration on account of non-delivery of basic public services to the
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citizenry, and that the poor socio-economic situation had resulted in economic
competition and tension between the poor South Africans and immigrants. The
Delegation was informed that xenophobic attacks are triggered by immigration
related economic crisis. The Delegation was informed that South Africa has a
porous border, due to which many immigrants arrive in the country illegally and
criminally, as opposed to those who arrive in search of refugee status. This surge
of undocumented immigrants has caused economic disadvantages and constraints
for the already historically and economically disadvantaged local communities
because various industries and employers have taken advantage of these
immigrants to offer lower wages and because a majority of them are involved in
informal trade, thus depriving the locals of already scarce job opportunities.
71. The Delegation appreciated the commitment of the Government to address this
issue, including through a Plan-of-Action on Racism, ahead of the signing into law
of the Prevention and combating of Hate Crimes and Hate Speech Bill (2016). The
Delegation also took note of the draft National Action Plan to combat xenophobia,
racism and discrimination. It was noted that according to the revised Refugee Act,
pending determination of status, asylum seekers are allowed to engage in business
and attend school, but however that, as South Africa does not have refugee camps,
business activities of asylum seekers cannot be restricted.
72. The Delegation took note of the Government’s concerns regarding abuse of the
asylum process by economic migrants, which makes it difficult to stick to the
stipulated timelines of processing requests, and also leads to inefficiencies in the
system. The Delegation was informed that at times, visitors extend their visit
beyond the time granted and once arrested, they claim that they want to seek
asylum taking advantage of the legal protections such as judicial review of
administrative actions via the Refugee Tribunal.
73. The Delegation took note of the looting of foreign-owned shops which had taken
place just weeks before the Promotion Mission. The Delegation was also informed
of the challenges faced by migrant women, in particular access to health care,
including where they are raped, and that migrants have at times been denied
health care or have to pay to access emergency services. Furthermore, the
Delegation was informed about a newly established political party, Africa Basic
Movement, which has as one of its main aims the removal of all foreign nationals
from SA. The Delegation noted the failure of the Department of Home Affairs to
comply with the court orders on the reopening of refugee reception centres in Port
Elizabeth and Cape Town, as well as the high levels of corruption in centres in
other parts of the country and the illegal arrest and detention for deportation by
the Government.
2.5. Women’s Rights
74. The Delegation was informed that women tend to bear the brunt of the social
consequences of the poor economic conditions and racial inequality, including in
particular in the context of the burden they bear for the welfare of their families
21
and households’ nutritional needs. The Delegation appreciates the legal and policy
recognition of the gendered nature of the inequalities and conditions of structural
oppression facing in particular black South Africans.
75. The Delegation is deeply concerned by the widespread and underreported
violence against women, including homicide, rape and domestic violence, and the
challenges of implementation of relevant legislation. The Delegation was informed
of perpetual under-resourcing of one stop centres for gender-based violence, the
Sexual Offences Courts and shelters for women. The Delegation nevertheless
appreciates the recognition that crime and violence affects disproportionately girls
and women and the efforts for addressing the scourge of gender-based violence
including through advocacy campaigns, the establishment of a multi-sectoral and
multi-stakeholders’ platform and the establishment of toll free lines and task
teams.
76. The Delegation was also informed of the work done by the Commission for Gender
Equality (CGE) which has monitored and investigated the work of the South
African Police as well as the work of the judiciary through the lower courts,
including Equality Courts and Sexual Offences Courts, to ensure that they enforce
the provisions of laws such as the Domestic Violence Act and the Sexual Offices
Act.
77. The Delegation was informed that in relation to traditional authorities and
women’s rights, that South African customs recognize women’s rights and reject
discrimination including in relation to succession. Women were noted to be heads
of traditional houses and hence traditional leaders, and gender balance in their
representation in this context is promoted. Nevertheless, the Delegation was
concerned by the continuation of certain harmful traditional practices such as
ukuthwala and virginity testing in some communities. The Delegation took note
that there are some pending bills, including those relating to the issue of
ukhuthwala and the decriminalisation of sex work, both of which have been
outstanding for a long time.
78. The Delegation was informed of a lack of clarity around the age of consent due to
divergent legislative provisions ranging from age 12 to 18. The Delegation took
note of the work done to address the disparities in the age of consent stipulated in
various legislation, and that the Department of Social Development was in the
process of developing a Child Care Protection Policy, which will be overarching
and will provide guidance to all Departments on amendment of legislation to
strengthen the protection of children.
79. In terms of sexual and reproductive health, the Delegation was also informed of
the lack of information in the public domain regarding the facilities which provide
abortion services, which means that women and girls continue to undergo unsafe
abortions in backstreet locations.
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80. In relation to education, the Delegation was informed of increased enrolment of
women in higher education, and in the number of female graduates. The
Delegation also took note of career development services provided to women and
active encouragement of women to apply for higher education, in a bid to address
past historical exclusion and disempowerment of women. The Delegation was
informed that, as a result, the year 2014 recorded a higher number of female than
male students and graduates, at 58 percent and 61 percent, respectively.
81. In relation to political representation, the Delegation was informed that the past 25
years have seen significant improvements in the representation of women as
candidates and as elected representatives in all spheres of government, despite the
fact that there is not a law on quota. However, political parties themselves do have
voluntary quotas and there is ongoing discussion regarding a possible
establishment of quota in law.
82. The Delegation commends the elaboration of progressive laws, policies and
mechanisms for promoting gender equality and gender justice in the political,
administrative, economic, social and cultural realms. On resourcing and budget
for gender matters in South Africa, the Delegation learnt that the national budget
is not necessarily gender disaggregated in its format, but that rather, the country
has established relevant institutions (i.e. the CGE, the Ministry for Women in the
Presidency, the Department of Social Development, Gender Focal Points inside
government departments, etc.) whose budgets are intended to cater for gender
mainstreaming related needs and priorities. However, it was indicated that the
resourcing and budget allocations of many of these specific institutions is very
limited, and in particular that the CGE’s budget has been undergoing significant
reductions over the past few years.
2.6 Access to information
83. The Delegation received information regarding an abuse of security mechanisms,
in particular the use of intelligence services for political purposes and to spy on
journalists, which negatively impacts on the ability of journalists to protect their
sources, including whistle-blowers. In addition, the Delegation learnt of concerns
that the ability of the Inspector General of Intelligence to carry out his functions
was undermined by the Head of State Security, who established a secret unit
within the State Security Agency (SSA).
84. In relation to the Access to State Information Bill, the Delegation was informed that
it had been waiting the signature of the President since its adoption in 2013, and
therefore, cannot, in its present state, be challenged, nor can the President be forced
to do anything. The Delegation was informed of concerns about the Cybercrimes
and Cyber Security Bill, currently before Parliament, which would curtail freedom
of expression and privacy.
2.7. Labour rights
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85. The Delegation learned of the basic conditions of work provided in legislation as
including paid leave, sick leave, maternity leave, family responsibility leave,
minimum age and the protection of young workers, equality, minimum wage and
sectoral determinations, as well as the prohibition of unfair labour practices and
provision of remedies in the event of a breach. However, the Delegation was
informed of widespread non-compliance with labour standards by employers,
despite the existence of a progressive legislative framework, and poor enforcement
and supervision of safety standards in the workplace. Furthermore, the Delegation
was informed of the challenge of inadequate numbers of labour inspectors and the
required multi-sectoral technical expertise in comparison with the number of
labour standards to be monitored and enforced in different sectors of the economy.
The Delegation was also informed of poor compliance with occupational and
safety standards and related exposure of workers to death and gender-based
violence in the workplace.
86. On killing of farm workers and violence in the agricultural sector, the delegation
learnt that farm workers are not only killed by criminal elements, but also
sometimes by their employers for demanding improved wages, in the context of
historical racial prejudices whereby workers are slaving rather than working on
fair terms and demands for better labour standards are often met with violence or
risks of eviction, which are still rife. The Delegation was also informed that despite
the existence of a legislative framework which regulates farm eviction, farm
workers continue to be evicted with no recourse measures in place.
87. In terms of positive developments, the Delegation was informed that the
Government maintains a database of youths and their skills profiles and links them
up with employers and employment opportunities. The Department of Labour
was also in the process of developing a national labour migration policy and
employment policy. It has also developed codes of conduct on sexual harassment.
The Delegation was informed that there is a system of labour courts at the disposal
of employers and employees, which are available to decide on matters concerning
statutory employment regulations.
88. The Delegation was informed that South Africa was introducing the National
Minimum wage being most established standard globally, that seeks to
cover/protect the most vulnerable. The Delegation was also informed that South
Africa has ratified the relevant Convention relating to domestic workers.
2.8. Rights of Persons with Disabilities
89. Regarding access to higher education, it was noted that the Department of Higher
Education and Training had formulated a policy framework to promote access to
higher education without discrimination - the Social Inclusion Policy Framework
for Public Post-School Education and Training Institutions (gazetted in 2016) -
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pursuant to which individual institutions are also required to adopt inclusion
policies, as well as a policy framework on Disabilities (gazetted in 2018).
90. The Delegation was informed that in order to provide reasonable accommodation
for Persons with Disabilities (PWDs), all schools are being converted into full
service schools, which comply with standards that accommodate PWDs, and as
well, special schools for children with severe needs are also being set up. learners
by supplying the full range of learning needs in an equitable manner.
91. Regarding sheltered employment, the Delegation was informed that these are now
called ‘supported employment programs’ which support the productive capacity
of PWDs and are to be established in all communities.
2.9. Extractive Industries
92. The Delegation was informed that prior to the advent of democracy in the country,
mine workers were exposed to dangerous conditions contracted lung diseases, and
were not compensated. However, efforts are now underway with the Department
of Labour to provide compensation.
93. The Delegation further learnt that applicants for mining licences have to comply
with the provisions of the Mining Charter, which includes, among others,
provisions on environmental protection, community engagement and consent,
living standards and housing, as well as leadership transformation and the
development of Social and Labour Plans (SLPs). In relation to the implementation
of SLPs, the Delegation was informed that the scope has been extended to also
include the mine sending [sic] areas and to ensure that the mining development
are also reflected in human development. Under the revised Mining Charter, five
percent of the mine turnover has to go directly to the community and another five
percent to the mine workers as free carry.
94. The Delegation was informed of the following challenges in the mining industry:
•
•
•
•
•
Lack of enforcement of and implementation by the mining companies of
applicable laws and standards or the inadequate monitoring and enforcement
of such standards;
Community consultations are often not fully representative of the interests of
the majority;
High level of incidence of protests and tension in areas of operation of the
mining sector;
Lack of gender transformation in the mining sector including poor
participation of women in various structures of the mining sector and sexual
harassment in the work place;
Poor or lack of proper closure and rehabilitation of mines with serious
adverse environmental and human impacts;
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•
•
•
•
•
•
Environmental human rights defenders (HRDs) face social persecution,
including through murder, physical intimidation and defamation suits against
the environmental HRDs by mining companies. Reference was made to the
death of an activist in Pondoland in 2016, which has not been sufficiently
investigated and has not been resolved as at date;
Mining companies are failing to implement their SLPs, which were intended as
a corrective measure to address the disparity in the distribution of wealth
amongst mineworkers and communities on the one hand, and mining
management on the other;
Because of the number of mining operations and the fact that they are spread
out across the country, it is difficult for the Department of Mineral Resources
to do the necessary enforcement and inspection on a regular basis;
Flawed implementation of public participation processes in the planning and
implementation of mining operations;
Mines left derelict where there is a failure to rehabilitate mines, and the
environmental and health repercussions, as well as the effect on potable water
where mining is allowed in critical water resource areas;
The socio-economic consequences of improper mine closure, including
deprivation of basic services;
95. The Delegation was informed that while the mining sector remains male
dominated, targets were set in the Mining Charter to achieve certain percentages
of women’s involvement in the mining space, including in management and
technical positions, and efforts are made to ensure procurement of goods from
women owned manufacturing enterprises and to encourage women
entrepreneurs. On the issues affecting women in the mining sector, it was noted
that the Department of Mining Resources had engaged in relevant standard setting
to address these, including developing sexual harassment policies, provisions for
maternity leave and setting standards on protective clothing for women.
96. The Delegation was also informed that the South African Human Rights
Commission (SAHRC) had number of studies on the mining sector, particularly
focussing on the plight of women workers in the mining sector and identified the
following issues of concern: lack of women’s ablution facilities; poor
security/safety against sexual harassment for women in mining; male dominated
working environment that remains hostile to women; lack of appropriate personal
protection equipment (PPE) for women in mining; and widespread sexual
harassment of women and failure by management to intervene.
97. The Delegation was further informed that the SAHRC had published a report on
mining and human rights which was submitted to the National Assembly, which
addresses issues of land, housing, water and the environment, highlighting noncompliance with laws regulating the mining licenses and operations of the mining
companies, especially as regards the rights of the mining-affected communities e.g.
demolition of houses, contaminations and health hazards, non-closure and
26
rehabilitation which attracts illegal mining, encroachments on cultural lands and
ancestral graves, and conflicts.
98. The Delegation was informed that there are instances of corporate customary gifts
to traditional communities (which are allowed by custom) which create conflicts
of interests and traditional community disputes, mostly because the gifts are
misconstrued and are not seen as equating with the benefits derived by the
companies. The Delegation also learnt that the Department of Traditional Affairs
was engaging to sensitize traditional leaders and communities on the long-term
implications of such private gains at the expense of the wider community.
99. The Delegation welcomed the efforts for reform in the extractive industries sector
through the draft Mining Charter with provisions aimed at empowering mine
workers and communities living in areas of mine operations. The Delegation also
welcomed the contribution of South Africa towards the UN treaty on business and
human rights as well as the recent expression of interest to provide leadership and
collaborate with the African Commission on Human and Peoples’ Rights to
facilitate a common African position on the issue.
RECOMMENDATIONS
The above areas of concern are an indication that South Africa still faces some
challenges in the promotion and protection of human rights in the country. These
recommendations are reflective of the fact that, as a State Party to the African Charter
and other regional and international human rights instruments, South Africa has an
obligation to respect and implement those instruments. It is on this premise that these
recommendations are made, taking into consideration some of the commitments
made by various stakeholders during this Mission.
1. Based on the findings of the Delegation, the Commission calls on the Government
of South Africa to adopt the following recommendations, in order to ensure the
promotion and protection of human rights:
General
• Overhaul and improve its capacity to implement its laws and policies,
including through enhanced accountability and governance measures,
including through addressing pervasive corruption;
• Conduct a comprehensive law reform exercise in order to harmonize laws that
set divergent standards creating uncertainty and hampering the enjoyment of
rights;
• Expedite the processes for the enactment of draft laws including the
Prevention and Punishment of Hate Crimes Bill;
• Ratify and domesticate treaties which have the potential to improve the
enjoyment of human rights, including OPCAT, African Union’s Protocol on
the Free Movement of Persons; 1951 Convention on Protection and Assistance
of the Internally Displaced Persons and the African Union Protocol on the
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•
Rights of Older Persons, among others;
Initiate a national dialogue and multidimensional action plan for addressing
the challenges of racialism, socio-economic inequality and weak social
cohesion;
Administration of Justice and Correctional Services
•
•
•
•
•
•
•
Address the challenges in the administration of justice for effectively
addressing the high rate of crimes and violence in South Africa;
Put in place effective mechanisms for ensuring protection of human rights
defenders from attacks and effective investigation and follow up of attacks
against human rights defenders;
Make the declaration under Article 34(6) of the Protocol to the African Charter
on the Establishment of an African Court on Human and Peoples’ Rights to
allow individuals to bring cases where domestic remedies are exhausted,
before the African Court;
Ensure that the police have adequate training and resources to handle gender
violence cases;
Ensure that all Magistrate Courts re able to fulfil their dual roles as Equality
Courts effectively and efficiently;
Ensure that the Department of Justice had adequate funding for the operation
of courts, relevant personnel and legal aid programmes;
Address the challenge of overcrowded prisons through shortening periods of
remand and building addition facilities, as necessary;
Institutions for promotion & protection of human rights
•
•
Ensure that all Chapter 9 institutions have adequate financial resources and
the full collaboration of the government to fulfil their extensive and crucial
mandates;
Take the necessary steps taken towards fully operationalising the Information
Regulator and to sensitize citizens on its existence and functions;
Socio-economic rights
• Pursue the restructuring of the economy for achieving inclusion of
marginalized sections of society, address the triple challenges of poverty and
inequality including through the implementation of the country’s target to
eliminate poverty by 2030 as envisaged in its National Development Plan;
• Improve strategies for youth employment, skills development and develop
sustainable strategies for access to higher education for all who qualify;
• Implement well managed land reform including through effective relevant
legislative and constitutional changes relevant for equitable distribution of
land and implemented following the democratic process, legality and without
adverse impacts on agricultural production and food security;
• Raise the standard of primary education through investing in teacher
education and continuous training, school infrastructure and learning
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•
•
•
•
•
•
materials;
Initiate a multi-sectoral process involving relevant public sectors, business,
entrepreneurs, local governments and development actors for comprehensive
and targeted implementation of existing policies and measures for addressing
unemployment and inequality in South Africa;
Increase measures to fight discrimination and ensure necessary assistance is
provided to PLWHIV regarding self-shaming and self-discrimination;
Fund, or award grants, and afford other support, to NPOs that provide
psycho-social support to LGBTIQ and their families;
Address the historical imbalance in access to housing through ensuring that
people have access to low cost housing, in particular vulnerable groups such
as the elderly, persons with disabilities and children;
Ensure the implementation of court decision in relation to illegal evictions and
ensure that vulnerable people, including farm workers, are aware of their right
not to be evicted before the proper processes have been followed;
Sensitize citizens on the rights of intersex persons including the harm of
medically unnecessary procedures, and enhance community education to
ensure that intersex children are not ostracised and discriminated against;
Social transformation & societal cohesion
•
•
•
•
•
•
•
•
Ensure the understanding and application of a delicate balance between
human rights and culture, which is at the heart of human rights protection;
Initiate a multi-sectoral national plan bringing together state actors, civil
society, business and local authorities including traditional authorities to
address the high incidences of crime in the country;
Implement all the required social, legal, community cohesion and policy
measures for addressing the challenges facing migrants, asylum seekers and
refugees, particularly of those originating from other African countries,
including xenophobic attacks;
Design interventions to address the issues at the level of the informal
economy, to take measures to uplift actors in the local informal sectors while
balancing this against the vulnerability of foreigners operating in that space to
ensure their protection;
Ensure that the policies of all political party are in line with the Constitution,
international human rights standards, and the code of conduct of the
Independent Electoral Commission;
Address the slow pace of transformation of the economy, including through
the realisation of socio-economic rights of the poor and vulnerable, job
creation, particularly for the youth, more equitable sharing of wealth,
including land reform and addressing pervasive corruption;
Take all necessary measures to ensure that affirmative action programmes are
not abused to benefit a small elite group at the expense of the vast majority of
poor people;
Ensure that there are enough and well-resourced refugee offices and that they
are in place in all places where refugees enter the country, and comply with
29
the court orders on the reopening of refugee reception centres in Port Elizabeth
and Cape Town;
Women’s rights
•
•
•
•
•
•
Engage with women groups and others that work on gender equality and
justice in South Africa including through the convening of regular Gender
summits and develop a comprehensive national strategy for addressing the
social, cultural and economic dimensions of sexual, gender-based and
domestic violence and ensuring effective assistance and redress to those
affected by it;
Ensure the adoption of pending bills on ukhuthwala and the decriminalisation
of sex work, both of which have been outstanding for a long time;
Ensure that the national budget is gender disaggregated and that services for
women, and in particular those affected by sexual and gender based violence
are sufficiently financed, including one stop centres for GBV, Sexual Offences
Courts and shelters for women;
Develop a comprehensive action plan on GBV, taking account of the role of
perpetrators in ending GBV and with a victim/survivor centred approach to
combatting GBV;
Ensure the protection of the rights of transgender persons and lesbians,
including those that have been subjected to GBV;
Adopt a law on quotas regarding women representation in politics;
Access to information
•
•
Imposition stricter limitations on the lawful inception of information, and for
the protection of whistle-blowers;
Establish a watchdog institution to oversee the activities of the State Security
Agency;
Labour rights
• Take urgent measures and adopt a multi-sectoral approach towards closing
the gap between the labour standards in the country and the reality of the
majority of South African workers;
• Enhance the capacity of the relevant offices for effective supervision and
enforcement of the applicable labour standards;
• Take targeted measures for promoting compliance and enforcing applicable
standards in sectors of the economy lacking effective compliance including the
extractive industries sector, agriculture and to address abuses facing those
working in the household and informal sector;
Rights of Persons with Disabilities
• Provide adequate resources to the South African Human Rights Commission
to serve as the monitoring institution for the implementation of the
Convention on the Rights of Persons with Disabilities, within the framework
30
•
•
of its broad mandate to monitor and assess the observance of human rights, as
well for purposes of delivering on its other mandates;
Review the visa application forms to see whether applicants are profiled on
the basis of disability;
Ensure that all public spaces are equipped to assist and accessible to persons
with disabilities;
Extractive Industry
• Fully implement recommendations by the South African Human Rights
Commission in its Mining Report released in August 2018 and report to the
Commission on measures taken for implementing the recommendations;
• Ensure effective participation of affected communities and civil society
organizations in consultation on the draft mining charter and adequately
incorporate their submissions;
• Ensure that all the mines that have not been properly closed causing
environmental and social risks are properly closed and rehabilitated following
applicable standards and provide for guidelines for companies for ensuring
economic transition for mining communities upon closure;
• Ensure minimum requirements for what constitutes ‘meaningful’ public
participation, and to ensure that SLPs represent the requirements of the
affected community as a whole;
• At a minimum, ensure that mining affected communities are not be worse off
than they were before the development, and that mining companies are aware
of their legal duties and responsibilities;
• Put in place modalities around the administration of benefits and
accountability to ensure actual beneficiation and avoid abuse of quotas.
31
ANNEXES
ANNEX 1: List of people met during the various meetings
Monday, 3 September 2020
i.
Meeting with the Department of International Relations and Cooperation
(DIRCO) delegation received by Ambassador Bongiwe Qwabe, Chief Director:
African Union.
ii.
Meeting with the Department of Justice and Constitutional Development
delegation received by H.E Michael Masutha, Minister of Justice and
Constitutional Development.
iii.
Meeting with the Department of Correctional Services.
iv.
Meeting with Information Regulator, Advocate Pansy Tlakula.
v.
Meeting with the Foundation for Human Rights.
Tuesday, 4 September 2020
vi.
Meeting with the Congress of South African Trade Unions.
vii.
Meeting with the South African Human Rights Commission, including
Commissioners JB Sibanyoni, J Malutji, MS Ameermia, and A Gaum.
viii.
South African National Editors’ Forum (SANEF).
ix.
Department of Traditional Affairs, delegation received by the Director-General
and his three deputies.
Wednesday, 5 September 2020
x.
Courtesy Call on the New Partnership for Africa’s Development, delegation
received by Professor Tandeka Nkiwane, Senior Advisor to the Chief Executive
Officer of NEPAD;
xi.
Meeting with the Department of Higher Education and Training.
xii.
Meeting with the Department of Basic Education.
xiii.
Meeting with the Department of Small Business Development.
xiv.
Meeting with the Department of Human Settlement.
Thursday, 6 September 2020
32
xv.
Meeting with the Department of Rural Development and Land Reform
(DRDLR).
xvi.
Meeting with the Department of Labour.
xvii.
Meeting with the Department of Social Development.
xviii.
Engagement with the Deputy Dean of the Faculty of Law and Law Students,
Centre for Human Rights, Faculty of Law, University of Pretoria.
Friday, 7 September 2020
xix.
Meeting with the Commission for Gender Equality.
xx.
Meeting with the Department of Home Affairs.
xxi.
Meeting with the Department of Mineral Resources.
xxii.
Visit to Kgosi Mampuru Prison Visit, the delegation was received by Ms TG
Molatedi, Regional Commissioner, Department of Correctional Services.
Saturday, 8 September 2020
xxiii.
Consultation with Civil Society.
xxiv.
The Delegation held a press conference, which was attended by journalists
from both the print and electronic media.
33
ANNEX 2: The Agenda of the Mission
PROGRAMME OF APPOINTMENTS FOR THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS: 03-08 SEPTEMBER 2018
No.
DATE
STAKEHOLDER
1. Monday 03 September
09:30 – 11:00
Department of International Relations and Cooperation (DIRCO)
11:00 – 16:00
Department of Justice and Constitutional Development
Department of Correctional Services
Information Regulator
Foundation for Human Rights
2. Tuesday 04 September
08:30 – 09:30
Congress of South African Trade Unions
11:00 – 13:30
South African Human Rights Commission
15:00 – 16:30
Department of Traditional Affairs
3. Wednesday 05
September
08:00 – 09:00
09:30 – 11:30
12:00 – 13:00
13:30 – 15:30
15:30 – 17:00
4. Thursday 06
September
New Partnership for Africa’s Development
Department of Higher Education and Training
Department of Basic Education
Department of Small Business Development
Department of Human Settlement
08:00 – 08:30
Dept of Land and Rural Development
08:30 – 10:00
Department of Labour
13:00 – 14:00
Department of Social Development
15:00 – 17:00
Centre for Human Rights
34
5. Friday 07 September
08:30 – 09:30
Commission for Gender Equality
10:30 – 11:00
Department of Home Affairs
11:00 – 11:30
Department of Mineral Resources
14:00 – 16:00
Kgosi Mampuru Prison Visit
17:00 – 18:00
Debriefing Wrap-Up Session with DIRCO
6. Saturday 08
September
09:00 – 14:00
Meeting with Civil Society representatives
15:00 – 16:00
Press Briefing
35