Friday 7 April was a momentous day across most of South Africa’s larger cities. In response to current events, including the downgrading of South Africa’s economic prospects by international ratings agencies, thousands of South Africans took to the streets to demand firmer, ethical and more decisive political leadership. While the protests were largely peaceful it is worth noting that Luthuli House was surrounded by men in camouflage, ostensibly uMkhonto weSizwe Military Veterans Association (MKMVA) seeking to “defend” the headquarters of the governing party.

Move, a month later, to 7 May, this time to Vuwani, in Limpopo province. The area has been the site of violent protests, which have seen the destruction of over 20 schools. The Vuwani residents oppose their incorporation into a new municipality and have been protesting for close to two years. As such, the 7 May gathering – which President Zuma was meant to address – was intended to reassure the community of an attentive Executive, willing to listen, at the very least, to the demands its citizens. Only, President Zuma did not attend the event as scheduled, reportedly, due to security concerns. Nevertheless, MKMVA members were present, clad yet again in army fatigues.

World Press Freedom Day is celebrated annually on 3 May and is championed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO). This day focuses on the fundamental principles of press freedom, the evaluation of the same, defending the media from attacks on its independence and paying tribute to journalists who have lost their lives in the exercise of their profession. This year as we commemorate this day, it is important to acknowledge the presence of threats posed to the freedom of the press in the country. 

Section 16 of the Constitution extends the freedom of expression to everyone and includes the freedom of the press and media. The Constitution protects the country’s diverse media, which is an instrumental tool for not only holding the state accountable, but also for the promotion of transparency at all levels of government. The press and media at large keep the country informed of developments in the world around them and ask the questions for which the average citizen may not have the platform. The Constitution is buttressed by a healthy legislative and institutional framework which regulates independence, promotes the access to information and encourages media diversity. These include the Broadcasting Act, the Promotion of Access to Information Act (PAIA) and the Independent Communications Authority of South Africa (ICASA).

In 2017 South Africa finds itself celebrating 21 years of the Constitution – a document revered the world over for its detailed protection of fundamental human rights. In recent years, the South African Government has come under fire for its failure to provide accessible tertiary education, especially to those from disadvantaged backgrounds. Even with the assistance of the National Student Financial Aid Scheme (NSFAS), movements such #FeesMustFall gained momentum and continue to highlight the stark inequalities of our society, especially regarding education.

Section 29(1)(a) of the Constitution extends the right to a basic education to everyone. This right, much like all those in the Bill of Rights, cannot be viewed in isolation. The right to education is intertwined with those of dignity and equality and is an instrumental tool for poverty alleviation and self-actualisation. Despite this, the South African Human Rights Commission (SAHRC) finds itself investigating the Eastern Cape Department of Education for the failure to provide over 42% of top-up textbooks (those that are intended to replace damaged or lost books) to schools in the province before the start of this academic year. The SAHRC was also in Limpopo for the same reason earlier this year. The first school term has already ended. This means there are children whose academic progress is being hindered by the Department’s failings.

A report into the deaths of numerous psychiatric patients transferred out of Life Esidimeni, compiled by Health Ombudsman, Professor Malegapuru Makgoba, revealed that in fact 94 mentally ill patients – as opposed to the originally recorded 36 – had died between 23 March 2016 and 19 December 2016.  More recent information suggests that the number of deaths has now surpassed 100, and is growing as more people come forward. Furthermore, the Health Ombudsman’s report acknowledged that patients had died under unlawful circumstances, largely involving neglect.  This raises critical questions regarding the failure of institutional leadership and parliamentary oversight. In the case of Life Esidimeni, the neglect of healthcare service delivery was a direct consequence of gaps at the structural level. 

South Africa’s National Mental Health Policy Framework and Strategic Plan 2013-2020, recognises that social determinants are an endemic factor of mental health. The Policy states that a “combination of genetic vulnerability, childhood trauma and adverse living circumstances brought about by poverty” may predispose individuals to mental health issues. South Africa’s history of oppression only further ostracises people who suffer from the additional burden of a mental health disorder. Thus, understanding the complex relationship between history, context, and health is particularly important in understanding the scope of the atrocities that happened at Life Esidimeni. The Health Ombudsman’s report makes reference to the connection between poverty and poor health outcomes, stating:

“Decisions, both at the level of policy development and implementation, should envisage the exercise of a greater duty of care for the protection of poor people, particularly, the rights of vulnerable people, which includes elderly people and people with disabilities affected in the LE transfers”.

Ahead of the December 2017 elective conference, the National Executive Committee (NEC) of the governing party will hold a meeting to discuss the “land issue”. It is apparent to even the uninterested observer, that it appears as if the party cannot agree on the meaning of the property clause in the Constitution.

Both the President and the Minister of Rural Development and Land Reform are quoted in the media as advocating for expropriation without compensation to expedite land reform.  Initially, the President seemed to be advocating (in the same vein as the third largest political party, the Economic Freedom Fighters) for an amendment to the property clause, to exclude compensation for expropriation, without due regard to the purpose of the expropriation. Lately, the President is quoted by the media as advocating for a position suggesting that expropriation without compensation for land reform within the current framework of the property clause is possible.

How true is the President’s position? Can expropriation without compensation or expropriation against low or nominal compensation be justified simply because the expropriation is aimed at a constitutionally legitimate purpose such as land reform?