While South Africans in general appear to enjoy most rights and freedoms in the Bill of Rights, this is only particularly true for political and civil rights, while socio-economic rights are not enjoyed to the same extent. In any event, the interrelated, interdependent and indivisible nature of human rights means that the failure to protect or fulfill one right affects the realisation of other rights. This was seen in the Constitutional Court’s decision in Kham and Others v Electoral Commission and Another where election results in Tlokwe (Potchefstroom) Local Municipality were set aside after the Independent Electoral Commission (IEC) failed to obtain sufficient particularity of voter’s addresses to enable it to ensure that the voter is at the time, ordinarily resident in that voting district. The Electoral Act demands that the voter’s roll include addresses of the voters. Some of the irregular address were those of voters dwelling in informal settlements. This proves the link between the right to access adequate housing, a socio-economic right, on the one hand, and the right to free, fair and regular elections on the other hand, which is a political right. Evidence of the interrelatedness of rights is also seen through the implementation of various school feeding schemes, which, while realising the right to sufficient food on the one hand, also assists in realising the right to a basic education.
In recognition of its place within the global village, the government ratified, in January 2015, the International Covenant on Economic, Social and Cultural Rights (ICESCR). This signifies the government’s intention to give socio-economic rights greater force nationally. Still on matters with international perspective, the Supreme Court of Appeal, in Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others, underscored the supremacy of the Constitution and emphasised the government’s obligation to abide by the law. This followed the 2014 decision of the Constitutional Court in National Commissioner of the SAPS v Southern African Litigation Centre and Others in which the Constitutional Court enunciated the government’s obligations under international criminal law, as well the Constitution. South Africa in 2015 submitted a report to the United Nations Human Rights Committee, which was the first such report submitted since the International Covenant on Civil and Political Rights was ratified in 1998. The government had been in breach of the treaty’s obligation to submit a report every four years. The report nonetheless has been criticised for lacking sufficient detail, particularly on issues such as the Marikana killings or the state’s relationship with Chapter 9 institutions, particularly the Public Protector’s office.
Crime and violent crime figures are persistently high and even if the annual statistics presented by the South African Police Service (SAPS) may show a decrease in the incidences of violent crimes, the figures are still unacceptably high. Some groups, particularly children, women, foreigners and lesbian, gay, bisexual, transsexual and intersex (LGBTI) are more vulnerable to violent attacks. At policy level, there is recognition of their particular vulnerability, but it remains to be seen how the government can guarantee their safety and security. All of this happening at a time when the National Prosecuting Authority (NPA) appears to be saddled with infighting and settling political scores, rather than adhering to its core mandate to fight crime in the nation. Allegations of state capture – a kind of systemic political corruption which sees private interests significantly influence a state’s decision-making processes to their own advantage outside of legal channels – loom large in the public discourse and it remains to be seen what steps will be taken to address this.
South Africans will once again elect councilors in the 2016 Municipal Elections. The Constitution places local government at the epicenter of the service delivery system including the realisation of socio-economic rights. Yet poor local governance is often the source of service delivery protests – some municipalities fail to provide such basic services such as water or electricity, and others still use the bucket system – and many are plagued by rampant corruption.
Land reform and the protection of property rights remain on the agenda, with the National Assembly adopting the widely criticised Expropriation Bill. Most recently, the Minister of Rural Development and Land Reform stated that pre-1913 land claims would be included in the restitution process. The Restitution of Land Rights Amendment Act came into effect in 2014 in order to allow the further lodgement for restitution claims until 30 June 2019. This despite 25.9% of the total land claims registered with the Department not yet being finalised. Also, close to 50% of the land already acquired for restitution has still not been transferred to the beneficiaries. It is unclear how the Department will address the articulated concerns. The Department of Rural Development and Land Reform estimates that 379 000 new claims would be lodged between 2014 and 2019. According to the Land Claims Commission’s track record, it would take 144 years to resolve all the claims.
The Constitutional Court, for the first time ever, overturned a ruling of the Electoral Court in the in Kham and Others v Electoral Commission and Another in matter where the Court found that the by-elections held in Tlokwe in 2013 were not free and fair, after opposition parties alleged irregularities on the voters roll. At the time of writing, the issue was yet to be resolved as the IEC does not have a means of capturing the addresses of South Africans living in informal settlements and in rural communities without fixed permanent street addresses.
The issues of language and access to education dominated the public discourse in 2015 with legal action being taken against institutions such as the University of Stellenbosch and the Free State University over their language policies. Increasingly, institutions (and at times schools) which offer Afrikaans as the language of instruction are under pressure to adopt English as the main language of instruction to the detriment of other languages. It remains to be seen how the competing interests of section 29(2) of the Constitution, which provides that “Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable…” can be practicability implemented.
Disappointingly, racial discrimination and renewed acts of racism continue to be a major dividing factor in South Africa with many instances of such occurrences being reported in the media. Furthermore, Equality Courts, as established by the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) report that the vast complaints dealt with are race-related.
FUTURE TRENDS
The South African judiciary’s important role in safeguarding and protecting the Constitution and its values continues, as does its role in ensuring the consolidation of democracy through holding the legislative and parliamentary branches of government accountable. However, the lower courts are persistently criticised for infringing on the right to access courts due to undue delays in deciding cases and settling matters.
In general, Parliament’s failure to hold the Executive accountable in notable instances has led to the disputing parties approaching the courts for a resolution – placing pressure on the Judiciary to resolve what is at heart, political issues.
The apparent politicisation of the criminal justice system and the security services remains a concern. Despite the appointment of a new National Director of Public Prosecution, allegations of ‘political hit squads’ and targeted prosecutions remain. This negatively affects the NPA’s ability to abide by its core mandate – that of instituting and conducting criminal proceedings on behalf of the state. It is worth noting that no head of the prosecuting authority, since the inception of the body in 1998, has completed a full term at the helm. Of particular concern is the failure of Parliament to nominate a candidate for the Inspector-General of Intelligence. The position has been vacant since 31 March 2015, which means that there is little oversight into the intelligence and counter-intelligence activities of the South African Intelligence Services to determine their compliance with the legislative framework. The Inspector-General’s role is to ensure that the Rule of Law is upheld and that the rights of South Africans are protected.
The SAPS revealed through an audit of their officers that 1 448 serving police officers were convicted criminals. As at the time of writing, they remained on duty thanks to SAPS union, POPOCRU’s successful challenge to attempts by the Minister of Police to rid the SAPS of the convicted officers. Given the nation’s unacceptably high crime rates, it is cause for concern when convicted criminals are in the ranks of a body whose constitutional mandate is to “prevent, combat, and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to enforce the law”.
Gender equality is in principle enjoyed as seen by South Africa’s position in global rankings on women holding legislative office, as well as the fact that statistics show that nearly all of South Africa’s girls are receiving basic education. At tertiary institutions, the number of women receiving higher education outnumbers that of men. However, violence against women is still a great concern. Despite the Department of Justice and Correctional Service’s establishment of specialised courts dedicated to sexual offences, the conviction rate remains low.
While more South Africans than ever before have access to education, it is telling that statistics suggest that only half of the learners who started their first grade in 2004 wrote the National Senior Certificate exams in 2015. Other statistics show that of the 19.7 million working-age youth (15 to 34 years),
9.8 million were not economically active and a further 3.6 million were unemployed. The ‘not economically active’ includes discouraged work-seekers, full-time students, and homemakers.
Land reform remains on the agenda. While it is a constitutional imperative, of concern is the implementation of various legislation including the Restitution of Land Rights Amendment Act, which reopened the land claims process despite the backlog of land claims facing the Commission on Restitution of Land Rights. Government has also announced the intention to allow pre-1913 land dispossessions despite the Constitution’s provision that only land dispossessed after 19 June 1913 can be included in the restitution process. In addition, plans to effectively hand over 50% ownership of farms to farm labourers are said to be underway despite the lack of detail on aspects such as compensation for expropriation.
The National Development Plan (NDP) enjoys broad support across the political spectrum and civil society, despite some misgivings from the some within the governing party and its alliance partners. Should it be successfully implemented, South Africa can look forward to improved living standards, the elimination of poverty, as well as reduced levels of inequality.
Ms Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights
