In terms of section 7(2) of the Constitution, the state must respect, protect, promote and fulfil the rights in the Bill of Rights. Accordingly and in terms of section 8 of the Constitution, the legislature, the executive, the judiciary and all organs of state are bound by the Bill of Rights. In principle, natural and juristic persons are also bound by the Bill of Rights, ensuring that the Bill of Rights does not only apply vertically between the state and the people, but also between people as groups and individuals. However, the growing failure within South Africa to fully appreciate and adhere to all of the aforementioned constitutional values – especially those of accountability, responsiveness and openness, but also non-racialism and non-sexism – is having a direct impact on the realisation of human rights and freedoms.
Nevertheless, on average, the people of South Africa are enjoying most of the fundamental rights enshrined in the Bill of Rights in one way or another. This includes a fairly wide enjoyment of most political and civil rights, although the same cannot be said about the realisation of socio-economic rights.
Inequality in its various manifestations, which includes persisting poverty, unemployment, access to quality basic education, health services, water and sanitation services, remains a challenge. Hence, although more communities have access to housing, electricity and water than ever before, the inability to provide these services in a sustainable manner to all people – especially at local government level – remains the primary cause of ongoing service delivery protests across the country. Similarly, the quality of basic education offered in the majority of South African schools continues to be low.
The lack of accountable, responsive and transparent government in general is of great concern. The impact on public administration and service delivery (whether due to unconstitutional conduct, corruption, wasteful expenditure or incompetence) remains one of the greatest threats to human rights and freedoms – especially the realisation of socio-economic rights. Fortunately, independent courts frequently strike down unconstitutional legislation and executive action.
Some state institutions established to support constitutional democracy – especially the Public Protector and to an extent the Human Rights Commission – are playing important roles in advancing human rights and identifying unconstitutional behaviour across the spectrum. The latter institutions are unfortunately often publicly criticised and decried by the national executive and Parliament, seriously undermining the integrity of these constitutional entities. In turn, Parliament has, to a large extent, not performed its constitutional role of holding the national executive accountable for its actions and inactions. Instead of fulfilling its proper oversight role, it often appears as if Parliament is intent on protecting the national executive from criticism and on stifling debate on matters of importance to the electorate. Encouragingly, the media remain relatively free and objective, and civil society continues to be vociferous and engaged in the promotion of constitutional values and human rights.
Crime and violent crime are at alarming levels (the murder rate increasing for a second consecutive year to more than five times the 2013 global average of six murders per 100 000) while the South African Police Service (SAPS) in some instances continues to show an apparent disregard for human rights and a human rights culture among its members. The latter directly and negatively impacts on various rights in the Bill of Rights. The realisation of a number of fundamental rights in the Bill of Rights is not only dependent on the SAPS operating as a professional and effective service, but on its operating within the parameters of the Constitution and its Bill of Rights.
In addition, the treatment of migrants, refugees and asylum-seekers by government officials and South Africans is of ever increasing concern. This treatment ranges from incidents of foreigners being denied healthcare, to outright violent xenophobic attacks on foreigners and their property. In this regard, the government seems unwilling or unable to identify these violations against foreigners as xenophobia or to successfully prevent or prosecute these crimes.
There are serious concerns that the right to equality before the law is being subverted by improper interference by the national executive in the activities and management of the National Prosecuting Authority (NPA), the South African Revenue Service (SARS) and the Directorate of Priority Crime Investigation (DPCI) within the SAPS.
Land reform and property rights continue to generate political rhetoric with seemingly contradictory messages being communicated by the government, creating uncertainty about the future of property rights in South Africa. Land reform is a constitutional imperative, but proposed legislation aimed at land reform remains problematic. In addition, land restitution claims have been reopened – despite a backlog of claims going back to 1998, and the Department of Rural Development and Land Reform’s annual budget being insufficient to cater for the new land claims. A drive by the Economic Freedom Fighters (EFF) to promote and support illegal land occupation is also of great concern.
Sadly, racial discrimination and renewed acts of racism continue to be a major dividing factor in South Africa and continue to play a determining role in access to employment, as well as the enjoyment of social, educational and economic rights. Although the Constitution requires measures to promote the achievement of equality, such measures have often disregarded the prohibition against unfair discrimination and have benefited only a small portion of the previously disadvantaged population. The right to equality of the great majority of the population has been seriously undermined by their lack of access to quality education and to employment.
Government policies (including the notion of numerical national demographic representation across all spheres of society) are increasingly race-based. Moreover, the tone of the national and political discourse has become disturbingly and aggressively racial and intolerant in nature. This was also evident from a number of incidents of racism perpetrated by individuals.
Adv Johan Kruger: Director, Centre for Constitutional Rights
