Human Rights Day on 21 March is set aside to both celebrate, as well as reemphasise the nation’s commitment to the Bill of Rights enshrined in the Constitution. The Constitution acts as a bulwark against the might of the State, while simultaneously obliging the State to respect, protect, promote and fulfil human rights. 

21 years into the adoption of the final Constitution, South Africa is a functioning constitutional democracy – the relatively peaceful handover of power in the 2016 local government elections largely attests to this fact. However, endemic levels of corruption in many government departments and other organs of state hamper the extent to which rights can be enjoyed. The recent intervention by the Constitutional Court, which saw the Court order the extension of an otherwise unlawful contract between the South African Social Security Agency (SASSA) and Cash Paymaster Services (CPS), to avert a social security grant crisis, is but one example. Similarly, state-owned entities such as the South African Broadcasting Corporation (SABC), Passenger Rail Services (PRASA) and the Petroleum Oil and Gas Corporation of South Africa (PETRO SA) are all plagued by leadership woes, financial and legal challenges. The same is true for crime-fighting organisations such as the National Prosecuting Authority (NPA) and the South African Police Service (SAPS). This impacts their ability to deliver on their mandates, which in turn affects the State’s ability to deliver on its constitutional mandate.

On Sunday, 12 March 2017, 35 000 cyclists would have participated in the Cape Town Cycle Tour – one of South Africa’s most iconic sporting events. Despite the event being cancelled, the organisers must be applauded for their approach to include people with disabilities to participate. This event is a blueprint for inclusivity and gives effect to the right to equality, as enshrined in section 9 of the South African Constitution.

Eighteen hand cyclists and about 15 people with disabilities in ‘buggies’ (which are towed by a pilot cyclist and a support cyclist, which account for 39 people in the buggy teams) would have participated in the event. An inclusive facilitative process with these specific cyclists ensured that all safety, health and logistical concerns were addressed. One innovative adjustment included the provision of a tracker device to the ‘buggy teams’, which could be triggered in case of an emergency. The question now arises whether the same inclusive approach is taken by other major and even smaller sporting event organisers in the country?

According to the acting Chief Executive Officer (CEO) of the South African Broadcasting Corporation (SABC), the Broadcaster has approached the High Court to challenge the findings of the erstwhile Public Protector’s report – When Governance and Ethics Fail. That Report found the former Chief Operations Officer (COO), Hlaudi Motsoeneng, guilty of misconduct and fraudulently obtaining his position at the SABC. The application for review – on the basis of administrative justice – comes an entire three years after the Report and its remedial actions were published by the Office of the Public Protector.

The Office of the Public Protector is a constitutionally-mandated body and the power it exercises is considered administrative action, according to section 1 of the Promotion of Administrative Justice Act (PAJA). Section 6 of PAJA provides that anyone may approach the courts for judicial review of such administrative conduct for a wide range of reasons, including lack of authority, bias and the concerned decision being unconstitutional or unlawful. Section 7 of the same stipulates the procedure for judicial review. The first requirement is that proceedings should be instituted without an unreasonable delay and not later than 180 days after the administrative action has been taken. PAJA makes provision for the variation (condonation for delay) of the time clauses by a court in the interests of justice.

The perennial land debate in South Africa seems to have taken on a new sense of urgency. In the last week alone, the National Assembly debated an Economic Freedom Fighters (EFF) motion to amend the property clause in the Constitution, with their leader issuing the injunction that “People of South Africa, where you see a beautiful land, take it, it belongs to you”.  The President too called for expropriation of certain land without compensation – a sentiment he first echoed during his State of the Nation Address (SONA) of 2017.

It is true that the sluggish pace of land reform, as well as lack of institutional capacity in South Africa, has resulted in the failure to deliver on the constitutional promise of an egalitarian and transformed society. It is also true that the available statistics on patterns of land ownership are largely outdated and incomplete. For example, a 2014 audit by the Department of Rural Development and Land Reform revealed that 79% of the country’s land is privately owned, without revealing the race, gender or nationality of such ownership. The lack of a detailed and current countrywide land audit all too often results in certain key political figures manipulating facts in a bid to deflect attention from poor governance. 

1. The Centre for Constitutional Rights (CFCR) is dedicated to upholding the Constitution of the Republic of South Africa, 1996 (the Constitution). To this end, the CFCR seeks to promote the values, rights and principles provided for in the Constitution; to monitor developments including conduct, policy and draft legislation that might affect the Constitution and the values, rights or principles provided therein; to inform people and organisations of their constitutional rights; and to assist them in claiming their rights. We do so in the interest of every person in South Africa.

The Centre for Constitutional Rights (CFCR) welcomes today’s ruling by the North Gauteng High Court that the government’s withdrawal from the International Criminal Court (ICC) was unconstitutional and invalid in the absence of such approval by Parliament.

The ruling is an important affirmation of key principles which underpin South Africa’s constitutional democracy. Previously, the Constitutional Court has held that every exercise of public power – including Executive conduct – must abide by principles of legality, and further that the exercise of all public power is always subject to constitutional control. This is also true for the exercise of public power in respect of foreign affairs.