SHANEES NKANDU'S HUMAN RIGHTS REPORT CARD LAUNCH ADDRESS
Thank you, Daniela.
Ladies and gentlemen, I am Shanees Nkandu, an LLB graduate from the University of Witwatersrand and one of the two interns that has had the pleasure to be part of this year’s Human Rights Report Card project as part of the FW de Klerk Foundation’s Constitutional Rights Programme team.
My colleague, Daniela, mentioned the rights most under threat as listed in the Human Rights Report Card 2024. Today, I want to focus on the Report Card’s findings as they relate to the rights to equality, life, threats to freedom and security of person and freedom of expression.
Section 9 of the South African Constitution guarantees equality.
In section 9, the Constitution expressly states that the right to equality includes:
- The right to equal protection and benefit of the law;
- The right to not be unfairly discriminated against, on various grounds, by either the state or anyone else; and
- The full and equal enjoyment of all rights and freedoms.
The full and equal enjoyment of all rights and freedoms is the crux of the right to equality. In 2023, South Africa’s right to equality was graded as an E-: i.e. very bad and deteriorating. In 2024, nothing had changed. Reflected in the E= grade awarded to the right; as explained by Christo, an “=” sign indicates that there had been no change in the right from the previous year.
Thus, there was no discernible improvement in South Africa’s achievement of equality from the previous year.
The major factors that contributed to this finding are bad policies, income inequality, persistent gender disparities in economic participation and South Africa continued to struggle with crime, specifically, Gender-Based Violence (commonly known as “GBV”). Many of these may be seen as systemic barriers that we, as South African, must actively work to change, to achieve true equality: the full and equal enjoyment of all rights and freedoms.
Turning to income inequality:
One of the most pressing challenges in South Africa is economic inequality. The International Monetary Fund (or “IMF”) has expressed concern that South Africa’s pronounced income disparity hampers economic growth, fuels social unrest and perpetuates cycles of poverty and emphasised the urgency of implementing reforms, because without decisive action, inequality could further destabilise the nation’s socio-economic landscape. As former president FW de Klerk said: “The enemy of peace is the failure to grasp the needs of the people.”
South Africa’s pronounced economic inequality can be seen by the fact that South Africa’s GINI coefficient is 0,63. A GINI coefficient is a measure that measures income disparity, where 0 signifies perfect equality and 1 represents extreme inequality of income disparity. Thus, with a GINI of coefficient is 0,63, South Africa remains one of the most unequal societies in the world.
Why does South Africa have such a large income disparity? Unemployment appears to be the key driver, and one of the main reasons for the persistent income inequality. As Daniela said, South Africa’s unemployment rate remained alarmingly high at 32,8% for the first quarter of 2024. Youth unemployment was even worse, at 45,5%. Again, South Africa’s real GDP in 2024 was only 1,1%, which barely outstripped South Africa’s population growth of 1%. The economy simply grew too slowly to make a dent in unemployment.
These figures are not just statistics; they represent millions of South Africans unable to access economic opportunities, entrapped in cycles of poverty. Particularly troubling is the fact that young women bear the brunt of this crisis, with an unemployment rate of 49,4%. That is half of all young women who are unemployed. But, this is not something that is limited to just young women – the labour force participation rate for women stood at 50,6%. This is significantly lower than the 63,6% for men. Women, also, earned only 75,8% of what men earned for similar work – i.e. there is a persistent gender pay gap. Additionally, women remain underrepresented in leadership roles, occupying just 33,1% of managerial positions. These findings underscore the on-going structural barriers that limit women’s full participation in the economy. The lack of safety in South Africa acts as a barrier to entry, preventing women from fully participating in the economy. This not only impacts negatively on the realisation of the right to equality, but also on the right to freedom of trade, occupation or profession, as enshrined in the Constitution.
Turning to problematic policies:
The enactment of the Employment Equity Amendment Act, 2022, seeks to make changes to the Employment Equity Act, 1998, by, amongst other things, empowering the Minister of Employment and Labour to determine numerical targets within economic sectors to ensure equitable representation. The Act was still to commence operation at the end of 2024.
While the Act’s intent might be to promote diversity and equality in the workplace, which aligns with constitutional principles, centralising even very detailed powers to the State may have unintended consequences, such as achieving the very opposite – the undermining workforce diversification and inadvertently causing job losses, lower economic growth and increased unemployment. This is best illustrated by Minister’s the Draft Employment Equity Regulations of 12 May 2023, which I will refer to as the “old draft regulations”. The old draft regulations were published for public comment and sought to establish very detailed, rigid numerical goals for specific employment sectors. For example, there are targets as low as 0% and 0,1% for Coloured (“Brown”) and Indian individuals in specific provinces. This caused some to label these equity targets as “quotas”.
Cleary, this is highly concerning. First, because this would drastically limit South Africans who are from these racial groups, would have a very limited opportunity, or no opportunity at all, to be part of the job market in that province, because any employment of them in certain provinces would constitute a breach by a “designated employer”. Second, as can be seen this example, the old draft regulations’ detailed regulation would only have achieved the exact opposite of the Act’s intention: to undermine workforce diversification.
While we need an open, equitable and non-discriminatory economy, such an approach would only have caused job losses, lowered South Africa’s already stagnant economic growth, increased unemployment and increased income inequality. Now, on 1 February 2024, the Minister published “new draft regulations” containing sectoral numerical targets for 18 sectors. Positively, the new draft regulations, in contrast to the highly contested “old draft regulations”, set only a single percentage target for “designated groups” (per sector and occupational level), differentiating only by gender and removing breakdowns by race. This is much better balance between equity targets and sustainable employment practices, one that will not inadvertently deepen South Africans’ economic distress.
When it comes to South Africa’s persistent struggle against crime, specifically, GBV,
The South African Police Service’s crime statistic show that in 2024, women and children remain affected by violent crime. Sexual violence remains a persistent issue, although 2024 saw a 0,84% decrease in sexual offences from the year before. However, underreporting remains a critical concern, with only 20% of women who suffer sexual abuse reporting it. The government’s recent legislative reforms seek to strengthen protections for survivors.
The number of female murder victims decreased by 68 murders, but still numbering 3 812. That is almost 10 and a half women being murdered every single day in South Africa. The number of attempted female murder victims increased by 327, bringing the total number to 6 573. That is 18 women a day. Thankfully, the number of female assault GBH victims decreased by 1 044. And the number of female rape victims in domestic violence cases also decreased, albeit by only 3 women. This brings the total number of female assault GBH victims and female rape victims in domestic violence cases to 59 844 and 3 334 respectively. This is approximately 164 women who are assaulted with the intent to do grievous bodily harm and just over 9 women who are raped as part of domestic violence, every single day last year.
Again, I wish to stress that the failure to ensure a woman is safe, is a fundamental barrier to her from gaining access to, and fully participating in, the economy and society. Without prioritising security, equality remains an elusive goal.
When it comes to the right to life:
The overall murder rate in South Africa remains alarmingly high, with an average of 71,87 murders per day in 2024. There was also an increase in political assassinations: With at least ten murders recorded between January and April 2024. It can be assumed that the National Elections that took place on 29 May 2024 and the political campaigning and contestation that come with it, were causally linked to this trend.
For this, and other reasons stated in the latest Human Rights Report Card 2024, the right to life’s full enjoyment remained very bad. In 2023 it was graded as E-, in 2024, nothing had changed. Reflected in the E= grade awarded to the right; as explained by Christo, an “=” sign indicates that there had been no change in the right from the previous year.
When it comes to the right to freedom and security of the person:
This right includes, amongst other things, the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way. Also protected is the right to bodily and psychological integrity, which includes, inter alia, the right to make decisions concerning reproduction.
In 2024 we saw a 9% increase in kidnappings, bringing the total number kidnappings for the year to 17 859, almost 50 a day. Reports indicate a 260% rise over the past decade. The provinces of Gauteng and KwaZulu-Natal consistently remained the provinces with the highest instances rates. These kidnappings were often linked to ransom demands – e.g. when Nqabayomzi Kwankwa, Member of Parliament, was kidnapped in Cape Town and only released after his party, the UDM, paid a R10 000,00 ransom.
Ransom was consistently the main causative factor for kidnappings last year, followed by extortion and then human trafficking. In addition, there was also the emergence of a concerning trend known as “express kidnapping” – where victims are abducted and coerced into making immediate financial transactions under duress.
Also, the Independent Police Investigative Directorate (or “IPID”) stated in its Annual Report for 2023/24 that 273 cases of torture were reported to it. (This is a significant increase from 228 in 2023.)
In 2023, the right to freedom and security of the person received a D- grade, indicating that its full enjoyment was poor and deteriorating. In 2024, the increase in the factors that influence its enjoyment (torture, kidnapping, the alarmingly high murder rate of over 70 murders a day, the nominal decrease in sexual violence (which decreased by 12 offences only) and the increase in assault GBH) resulted in this right receiving an E grade, indicating its full enjoyment is very bad.
The right to freedom and security of the person must not remain a constitutional promise; it must be a lived reality for all. A nation that cannot protect its people is a nation that undermines its own future.
Coming finally to the right to freedom of expression,
Section 16 of the Constitution entrenches the right to freedom of expression, which explicitly includes, the freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Such robust protection is given to this right, not only because it is so essential to a multiparty system of democratic government, but because of South Africa’s history as an apartheid state in which heavy censorship was imposed on all.
The Constitution specifically excludes propaganda for war, incitement of imminent violence and the advocacy of hatred (based on race, ethnicity, gender or religion) that constitutes incitement to cause harm (i.e. “hate speech”) from protection. However, it allows the Government to regulate this “unprotected speech” as it sees fit.
It is in this context that the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, (which I will simply refer to as “the Hate Speech Act”) was passed. It was signed into law in May 2024, but with a date of commencement still to be promulgated.
The Act criminalises expressions – i.e. wider than mere speech – it sees as hate speech. If one is found guilty of an expression the Act sees as hate speech, it allows you to be sentenced to up to five years’ imprisonment.
Expressions that the Act considers as “hate speech”, simply put, are any expressions that:
(i) Incite harm; and
(ii) Promote or propagates hatred;
(iii) Against a group of people specifically listed in the Act.
The Act was subject to widespread debate, due to its wide definition of harm, which includes subjective and vague concepts, such as emotional harm and social harm. However, its failure to define hatred at all is likely the most concerning.
This – the Act’s wide and vague definition of harm and its failure to define hate, the quintessential element of the crime of hate speech – results in the Act not only be contrary to the founding value of the rule of law (which requires that laws be clear), but also going wider than the Constitution and in effect, causing the Act to criminalise expressions that are constitutionally protected. Supporters have welcomed the Act, viewing it as a crucial step toward safeguarding vulnerable communities from hate-motivated offenses. Critics have warned that this Act will have a chilling effect on free speech as people stay silent for fear of imprisonment.
Especially concerning are the Act’s inadequate protections for journalists, academics, artists and religious freedom, which are self-defeating, as a result of circular drafting. This offers very little real protection for speech explicitly protected in the Constitution, precisely because it is so important for the functioning and health of South Africa’s democracy.
This and other developments covered in the Report Card saw the right to freedom of expression receive a C- grade for 2024: indicating that its full enjoyment was moderate, but deteriorating. (The fact that the Hate Speech Act was not yet in operation led to the right remaining at moderate, as opposed to being downgraded to D, poor.)
Thank you for your attentive consideration. I now handover to my colleague and fellow intern, Sonia Twongeirwe.