World Press Freedom Day is celebrated annually on 3 May and is championed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO). This day focuses on the fundamental principles of press freedom, the evaluation of the same, defending the media from attacks on its independence and paying tribute to journalists who have lost their lives in the exercise of their profession. This year as we commemorate this day, it is important to acknowledge the presence of threats posed to the freedom of the press in the country.
Section 16 of the Constitution extends the freedom of expression to everyone and includes the freedom of the press and media. The Constitution protects the country’s diverse media, which is an instrumental tool for not only holding the state accountable, but also for the promotion of transparency at all levels of government. The press and media at large keep the country informed of developments in the world around them and ask the questions for which the average citizen may not have the platform. The Constitution is buttressed by a healthy legislative and institutional framework which regulates independence, promotes the access to information and encourages media diversity. These include the Broadcasting Act, the Promotion of Access to Information Act (PAIA) and the Independent Communications Authority of South Africa (ICASA).
The Centre for Constitutional Rights (CFCR) welcomes the decision by the Western Cape High Court, handed down today, which sets aside South Africa’s nuclear agreement with Russia. The successful challenge to the agreement was launched by civic organisations, EarthLife Africa (ELA) and the Southern African Faith Communities’ Environment Institute (SAFCEI), on the basis that the agreement was unlawful and unconstitutional.
The secret nuclear deal would have reportedly cost the nation R1-trillion and the South African public would be none the wiser – but for the diligence of investigative journalists and the non-governmental organisations who approached the courts.
Apart from the exorbitant costs of the deal, which South African taxpayers would have to bear, the deal transgressed the Constitution’s demands that procurement of goods or services must be fair, equitable, transparent and cost-effective. Binding for a minimum of 20 years, the deal would have practically granted South Africa’s decision-making powers on the nuclear industry, over to Russia.
In 2017 South Africa finds itself celebrating 21 years of the Constitution – a document revered the world over for its detailed protection of fundamental human rights. In recent years, the South African Government has come under fire for its failure to provide accessible tertiary education, especially to those from disadvantaged backgrounds. Even with the assistance of the National Student Financial Aid Scheme (NSFAS), movements such #FeesMustFall gained momentum and continue to highlight the stark inequalities of our society, especially regarding education.
Section 29(1)(a) of the Constitution extends the right to a basic education to everyone. This right, much like all those in the Bill of Rights, cannot be viewed in isolation. The right to education is intertwined with those of dignity and equality and is an instrumental tool for poverty alleviation and self-actualisation. Despite this, the South African Human Rights Commission (SAHRC) finds itself investigating the Eastern Cape Department of Education for the failure to provide over 42% of top-up textbooks (those that are intended to replace damaged or lost books) to schools in the province before the start of this academic year. The SAHRC was also in Limpopo for the same reason earlier this year. The first school term has already ended. This means there are children whose academic progress is being hindered by the Department’s failings.
A report into the deaths of numerous psychiatric patients transferred out of Life Esidimeni, compiled by Health Ombudsman, Professor Malegapuru Makgoba, revealed that in fact 94 mentally ill patients – as opposed to the originally recorded 36 – had died between 23 March 2016 and 19 December 2016. More recent information suggests that the number of deaths has now surpassed 100, and is growing as more people come forward. Furthermore, the Health Ombudsman’s report acknowledged that patients had died under unlawful circumstances, largely involving neglect. This raises critical questions regarding the failure of institutional leadership and parliamentary oversight. In the case of Life Esidimeni, the neglect of healthcare service delivery was a direct consequence of gaps at the structural level.
South Africa’s National Mental Health Policy Framework and Strategic Plan 2013-2020, recognises that social determinants are an endemic factor of mental health. The Policy states that a “combination of genetic vulnerability, childhood trauma and adverse living circumstances brought about by poverty” may predispose individuals to mental health issues. South Africa’s history of oppression only further ostracises people who suffer from the additional burden of a mental health disorder. Thus, understanding the complex relationship between history, context, and health is particularly important in understanding the scope of the atrocities that happened at Life Esidimeni. The Health Ombudsman’s report makes reference to the connection between poverty and poor health outcomes, stating:
“Decisions, both at the level of policy development and implementation, should envisage the exercise of a greater duty of care for the protection of poor people, particularly, the rights of vulnerable people, which includes elderly people and people with disabilities affected in the LE transfers”.
Ahead of the December 2017 elective conference, the National Executive Committee (NEC) of the governing party will hold a meeting to discuss the “land issue”. It is apparent to even the uninterested observer, that it appears as if the party cannot agree on the meaning of the property clause in the Constitution.
Both the President and the Minister of Rural Development and Land Reform are quoted in the media as advocating for expropriation without compensation to expedite land reform. Initially, the President seemed to be advocating (in the same vein as the third largest political party, the Economic Freedom Fighters) for an amendment to the property clause, to exclude compensation for expropriation, without due regard to the purpose of the expropriation. Lately, the President is quoted by the media as advocating for a position suggesting that expropriation without compensation for land reform within the current framework of the property clause is possible.
How true is the President’s position? Can expropriation without compensation or expropriation against low or nominal compensation be justified simply because the expropriation is aimed at a constitutionally legitimate purpose such as land reform?
The Constitutional Court confirmed in Laubscher N.O. v Duplan and Another, the constitutionally enshrined right to equality and freedom from unfair discrimination on grounds such as gender and sexual orientation. The matter concerned the right of a permanent same-sex life partner to inherit intestate from the deceased’s estate. It sheds light on the rights of unmarried same-sex partners in a permanent same-sex partnership in which reciprocal duties of support have been undertaken.
The point of contention is whether the applicant, Dr Laubscher, the deceased’s brother, or the respondent, Mr Duplan, the deceased’s permanent same-sex partner, is entitled to inherit from the intestate estate of the deceased. The Commission for Gender Equality (CGE) was granted access as a friend of the court as part of its mandate to promote respect for gender equality.
The facts briefly are that the respondent and the deceased neither solemnised nor registered their partnership in terms of the Civil Unions Act (CUA). At the passing of the deceased, no children had been adopted to whom his estate could pass. In the High Court, the respondent relied on Gory v Kolver NO, previously heard by the Constitutional Court prior to the enactment of the CUA in 2006. In that case, section 1(1) of the Intestate Succession Act (ISA) was declared unconstitutional because it did not permit individuals in same-sex permanent partnerships to inherit intestate. To remedy this constitutional defect, the Constitutional Court read in the words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” after each appearance of the term “spouse”. This ensured that permanent same-sex life partners were protected. Based on the above, the respondent argued that regardless of the absence of legal formalities in terms of the CUA, he was entitled to inherit intestate from the deceased’s estate.
Attention to the poor conditions of the 37 000 km of rural gravel roads in the Eastern Cape was finally given judicial teeth in the structural interdict in Agri Eastern Cape and Others v the MEC for the Department of Roads and Public Works and Others (Agri Eastern Cape matter). The structural interdict was delivered by the Eastern Cape High Court on 28 February 2017 and provides great relief to the farming communities of the Eastern Cape.
The important structural interdict granted against the Member of the Executive Council and Director-General of the Department of Roads and Public Works (collectively described as the Department or the Respondents) included time frames for specific remedial actions, time frames for road repair service contract agreements to be concluded, and an Order to initiate a competitive bidding process for external contractors involved in road repairs. The Order also went as far as to stipulate a mechanism in terms of which individual farmers may attend to the repair of a farm road, depending on compliance with the procedure set out in the Order for which they will be entitled to be refunded for the costs incurred.
The rural roads serving farming communities in the Eastern Cape are not only used by commercial farmers but are a vital lifeline for access to a whole range of social services, including emergency services and access to schools. Furthermore, in the answering affidavits filed by the Respondents, they admitted that the condition of the gravel roads in the Eastern Cape is the worst in the country. In addition, there is an extensive backlog of road maintenance, which appears to be due to under-funding and lengthy procurement processes.
THE CONSTITUTION AND GOOD PUBLIC LEADERSHIP: BREAKFAST DISCUSSION SERIES 2017