SONIA TWONGYEIRWE'S HUMAN RIGHTS REPORT CARD LAUNCH ADDRESS

Thank you, Shanees.

Ladies and gentlemen, I am Sonia Twongyeirwe, an intern at the Foundation and enrolled in the BA Hons International Studies programme at Stellenbosch University.

Among the top 10 Human Rights Most Threatened, I will briefly discuss:

1. Health care, food, water and social security
2. Children
3. Education
4. Freedom of Trade, Occupation and Profession
5. Property

First let us consider health care, food, water and social security:

Section 27 of the Constitution guarantees everyone the right to access health care services (including reproductive services) and not to be refused emergency medical treatment; sufficient food and water; and social security. It mandates the government to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

Turning to healthcare:

While notable hospitals exist in South Africa’s public healthcare sector, the sector overall faces multifaceted challenges such as the severe shortage of doctors. As pointed out by the Foundation in 2024, this is exacerbated by funding constraints which left over 800 qualified medical professionals unemployed and prompted some skilled practitioners to emigrate. These persistent budget limitations hinder recruitment efforts, compounding the crisis in public healthcare facilities which are already plagued by equipment shortages and medication deficits.

It is in this context that the National Health Insurance Act, 2023 (commonly known as the “NHI”) became law on 15 May 2024. However, it must be pointed out that this Act is not yet in operation, with its date of commencement still to be proclaimed in terms of section 59 of the Act.

The Act is meant to provide universal access to quality health care. Its goal is to achieve “Universal Health Coverage” to ensure that no one is deprived of access to quality health care, because of their socio-economic status. This also a key UN Sustainable Development Goal.

The Act seeks to achieve this achieve “Universal Health Coverage” by creating one public health fund with adequate resources to plan for (and effectively meet) the health needs of the entire population – the NHI Fund. According to the National Department of Health, the NHI Act will be phased in gradually using a progressive approach based on resource availability.

Under the NHI Act:

• The NHI Fund would be the core purchaser and provider of medical services and medicines
• Registered healthcare users would be entitled to free medical care and medicine from accredited service providers
• Health service providers would decide on treatment and referrals to specialists and would be reimbursed by the NHI Fund
• NHI would decide annually what the applicable payment rates would be for health care service providers.

However, concerns about the Act’s constitutionality and viability persist:

• It seeks to limit the cover offered by private medical schemes (infringing on the right to access healthcare)
• It proposes additional tax burdens on an already shrinking tax base, requiring an additional R200 billion in taxes according to some Government estimates. Importantly, National Treasury, the Davis Commission and the Minister of Finance have all stated that the scheme is unaffordable. In fact, Finance Minister Enoch Godongwana also said it is unaffordable and that the proposed financing sources are unsustainable as far back as 2023.
• Healthcare service providers have threatened to leave the country should the NHI become law. This is a loss in skills the country can ill afford, as well as one that will further contract the shrinking tax base.
• The NHI is directed primarily toward basic and emergency healthcare. The FW de Klerk Foundation pointed out last year that, by prioritising primary care and centralising healthcare provision, the NHI risks neglecting those with rare diseases, leaving them without adequate support or access to essential treatments. This approach not only fails to address their unique healthcare requirements, but also undermines the private sector without ensuring sufficient enhancements to the public healthcare system.

The NHI’s framework, positioning the State as the sole purchaser of healthcare, exacerbates concerns surrounding sustainability. Because it also diminishes the role of medical aids, who are vital employers in the country, we would be remiss to not point out the risks it poses of further undermining the small fiscal tax base.

The vast disparity between South Africa’s private and public healthcare sectors highlights a critical issue. Unfortunately, the current framework proposed by the NHI threatens to exacerbate this gap, rather than bridge it.

Then, there was also the Second Presidential Health Compact (2024-2029) which was signed in August 2024. This Compact commits stakeholders to establishing a unified, integrated, responsive healthcare system for the entire population. Its aim was to involve the private sector to strengthen governance and improve oversight of the healthcare system.

Shifting focus to everyone the right to sufficient food and water:

The South African Food Security Index for 2024 found food insecurity reached its highest level in over a decade. According to a survey from the Human Sciences Research Council, 63,5% of households in South Africa face food insecurity with hunger and malnutrition plaguing families, many with children under the age of 5. Rising food prices, poverty and high unemployment have made it increasingly difficult for families to afford nutritious meals: I would be remiss if I did not point out that the food poverty line was R796,00 per person per month in 2024, but the Child Support Grant was only R510,00 per month. A report on child malnutrition from the South African Human Rights Commission detailed the food insecurity of children in the Eastern Cape province, one of the poorest provinces in the country.

Significantly, children are especially vulnerable to the effects of malnutrition, such as stunted cognitive development, or effects of undernutrition and obesity from dependence on low-cost, high-caloric and low nutrient staples – in fact, 25% of children’s growth is stunted. Here the United Nations Children’s Fund (also known as “UNICEF”) found that less than 21% of children receive a minimum acceptable diet.

Then there is the Public Affairs Research Institute (commonly known as “PARI”), that found that the cost of water for the average four-person household in 2024 was R406,28 per month. Yet a quarter of households live on less than R3 176 per month.

Additionally, there were frequent interruptions to water services such as the 11-day suspension across extensive areas in Johannesburg in early 2024 to the disadvantage of residents in the city. Thus, water was both unaffordable and insufficient for many households.

Concerning everyone the right to social security:

Changes in the distribution of grants from the South African Social Security Agency (or “SASSA”) which led to distress for recipients. A key issue was the phased withdrawal of cash distribution by Postbank and Post Offices with many SASSA grant recipients failing to receive payment from these locations. This move by SASSA was carried out to deter cash-in-transit heists and reduce stress on the struggling Post Office. Changes in cash distribution and poor communication about these changes made access to grants more difficult for beneficiaries.

If you look at the Human Rights Dashboard on your printout, you will see that in 2023, healthcare, food, water and social security received an E grade, indicating that its full enjoyment was very bad. In 2024, it was awarded an E-, i.e. very bad and deteriorating, due to the enactment of NHI, food insecurity reaching its highest level in over a decade, the cost of water and the confusion surrounding the distribution of SASSA grants.

Examining Children’s rights:

Section 28 of the Constitution protects children’s rights, which expressly includes, amongst other things, the right to a name and a nationality from birth; basic nutrition; shelter; basic health care services; and social services.

Let’s first consider children’s right to a name and a nationality from birth:

A birth certificate is a child’s proof of citizenship and allows them access to social security grants and other rights. In March 2024, nearly 200,000 fewer infants were receiving the grant than in March 2020 when South Africa went into lockdown. This is very concerning, given the fact that we have a growing population. According to UNICEF, only 76-90% of South African births are registered.

This is without considering the problem of “invisible children” – those who are prevented from obtaining a birth certificate, because they do not have all the required documentation (but have other documentation to prove their birth and mother’s identities, etc.).

Considering children’s right to basic nutrition:

As previously stated, malnutrition also remains critical in South Africa with UNICEF reporting that severe child food poverty affects 23% of children. UNICEF also found that child poverty is at 62,1% – being the highest in Limpopo and Eastern Cape. Children outside metropolitan municipalities were twice as likely to live in multidimensional poverty than those living in the metros.

In 2023, children’s rights received a D- grade, indicating that its full enjoyment was poor and deteriorating. Due to these factors we just discussed, as well as others listed in the report, in 2024, it was awarded an E grade, indicating that its full enjoyment was very bad.

Reflecting on education:

Section 29 states that everyone has the right to basic and further education. This includes the right to receive an education in an official language of their choice.

The good news includes the matric pass rate:

In 2024, South Africa achieved a historic matric pass rate of 87,3%, the highest pass rate in South Africa’s history and an almost 5% increase from 2023’s 82,9%. Of those who passed, 47,8% qualified for admission to Bachelor studies (i.e. university exemption).

When it comes to indigenous languages in school:

The Department of Basic Education has also made significant progress in promoting the use of indigenous languages at schools with a proposed expansion of the successful Eastern Cape Mother Tongue-Based Bilingual Education (MtbBE) model nationwide. In this model, learners in these schools are taught other subjects such as mathematics and natural science in their mother tongue languages. Statistically, learners who are taught using their home language in the first six years of schooling fare better than those who are not. Additionally, after the eighteenth amendment of the Constitution comes into effect, South African Sign Language (“SASL”) will be included as an official language, however a date is yet to be set by the President.

When talking about education, one has to consider the Basic Education Laws Amendment Act, 2024:

Commonly known as the BELA Act, this law was assented to by the President on 13 September 2024 and commenced operation on 24 December 2024. The BELA Act criminalises parents (with up to 12 months imprisonment) should they fail to enrol their child from Grade R. It is concerning that criminalising parents is the one solution. This is likely to disproportionately impact socio-economically vulnerable families. The BELA Act also grants the State powers to override the decisions made by parents via School Governing Bodies (“SGBs”), including admissions and language policies and may lead to less parental involvement in school governance. This centralises powers away from parents and schools’ local communities, once again with the State, losing many of the gains made for parents in schools after democracy. The Act may also potentially diminish the responsiveness of schools to the specific needs and preferences of their local communities.

Turning to consider budget cuts to the education:

Several Provincial Education Departments made significant structural changes to cope with severe cuts in their education budgets in 2024:

• The Western Cape was in the spotlight, because of its decision to reduce the number of educator posts as a result of a R3,8 billion budget cut. This crisis was further compounded by the national government’s decision not to fully fund the 2023 wage agreement, leaving the province to cover 36% of the shortfall.
• KwaZulu-Natal was unable to afford 11 092 educator posts due to a staggering R4 billion budget shortfalls.
• Mpumalanga faced a pressure of R876 million.
• North West was grappling with a R485 million gap.

Minister Gwarube said the roots of the fiscal crisis were poor policy choices and a stagnant economy.

In 2023, the right to basic and further education received an E- grade, indicating that its full enjoyment was very bad and deteriorating. In 2024, it was graded a D grade, i.e. as poor. This is an improvement from the previous year and was founded on fact that the positive developments were significant, particularly the fact that the matric results improved from the previous year.

The final right I will consider is Property

Section 25 of the Constitution protects the right to property. It provides, amongst other things, that no one may be deprived of property (except in terms of law of general application), that no law may permit arbitrary deprivation of property and that property may only be expropriated in terms of law of general application.

Reflecting on expropriation:

We see that the Constitution outlines two conditions for the expropriation of property in terms of law of general application:  First, it must be a public purpose or in the public interest. Second, it must be subject to just and equitable compensation.

The Expropriation Act, 2024 states that it was assented to by the President on 20 December 2024.The Act allows for nil compensation to be considered just and equitable where land is expropriated in the public interest, having regard to all relevant circumstances. Importantly, these “relevant circumstances” are not a closed list of the type of land that can expropriated for nil compensation. This raises the possibility that further circumstances can arise in which nil compensation may be paid.

The FW de Klerk Foundation believes the Act to be unconstitutional because, amongst other things, it is contrary to the rule of law as it is not rationally connected to achieving a legitimate purpose. This is because, the 2017 High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change concluded that lack of funding was not the cause for the slow (and failed) pace of land reform. Rather the report found the causes to be lack of political will, corruption and a reverting back by the State to an apartheid-style state-stewardship and elite capture.

Despite the Act not yet being in force, there is the concern that it might lead to increased land invasions, as it could be perceived as a signal that property rights will not be protected by the state. This is especially a concern for urban areas, as people migrate to cities, because those invading land often disregard court rulings.

In 2023, property rights received a D grade, indicating that its full enjoyment was poor. In 2024, it received a D- grade, indicating that its full enjoyment was poor and deteriorating. This was due to the Expropriation Act coming into law. The fact that the Expropriation Act was not yet operational led to the right retaining a poor grade, as opposed to being downgraded to E, very bad.

Thank you for your kind attention. This concludes the in-depth analyses of some of the rights that are most threatened. I now hand over to Christo, who will provide the concluding remarks for today’s launch.