South African Human Rights Research Articles

Democracy in Action: The Demise of the Traditional Courts Bill and its Implications

In February 2014, following years of resistance, the Traditional Courts Bill (TCB), was allowed to lapse in Parliament. This followed intense opposition by citizens in rural areas, the South African Human Rights Commission (SAHRC), the Department of Women, Children and People with Disabilities (DWCPD) and other institutions in the public consultations held by Parliament on the Bill. Despite significant structural and procedural obstacles to participation in these consultations, including the fact that the state assisted only traditional leaders to attend public hearings, many people in rural areas gave eloquent inputs on the Bill. Even though the official word is that the Bill simply lapsed, this is a direct consequence of this national resistance. It is a victory for the thousands of people who opposed the Bill, for the millions of people who will not be forced to live under the separate legal system that the Bill had proposed, and for South Africa's democratic structures which demonstrated responsiveness to public outcry.

The Impact of Litigation by the Legal Resources Centre for Adequate Classroom Infrastructure in South Africa

The Legal Resources Centre (LRC) is a South African nonprofit human rights organization that conducts public interest litigation. In response to the South African government’s delays to remove mud schools in the Eastern Cape Province, LRC took the government to court in August 2010. As a result of the mounting legal pressures, in January 2011 the Eastern Cape Department of Education signed an agreement with LRC. According to the agreement, the national government would introduce a new three-year grant to address infrastructure backlogs, of which Eastern Cape would receive 78 percent of the total. In the interim, the provincial education department would provide temporary structures and furniture for the seven schools that joined the court case. Progress in implementing these agreements has been slow, but the LRC continues to apply pressure and monitor progress.

Can we talk about the right to healthcare without language? A critique of key international human rights law, drawing on the experiences of a Deaf woman in Cape Town, South Africa

A case study in Cape Town, South Africa, explores the right to health for signing Deaf1 patients attending health services and who are unable to communicate in a language they understand. It argues that, without language, Deaf South Africans’ dignity and right to health is violated, resulting in serious consequences such as incorrect diagnosis, improper treatment and standard of care not being applied. It critiques the provisions of the Convention on the Rights of Persons with Disabilities (CRPD) and the limits of General Comment 14 of the International Covenant on Economic, Social and Cultural Rights. The paper demonstrates that Deaf patients do not have informational access to healthcare. It argues that language via professional interpreter services is essential to their South African constitutional right of access to healthcare. General Comment 14 addresses informational accessibility, but this is insufficient without addressing language as a pre-requisite. The CRPD imposes on the South African government human rights obligations to provide professional interpreter services for Deaf people, but unfortunately it allows a loophole by enabling cost to serve as reasonable grounds to defer action.

An Analysis of the Contribution of the South African Human Rights Commission to Protecting and Promoting the Rights of Children

There has been limited research into the activity of South Africa’s national independent human rights institutions (NIHRIs) and their roles in protecting and promoting the rights of children. This article attempts to address this gap by analysing the mandate and the effectiveness of the South African Human Rights Commission (SAHRC) in respect of children’s rights. The mandate and the work of the SAHRC are assessed against the guidelines issued by the United Nations Committee on the Rights of the Child. The article shows that the SAHRC largely complies with the above general guidelines, although improvements are required in terms of the specificity of the mandate pertaining to children, priority given to the rights of children, the diversity of rights issues addressed by the SAHRC, as well as promoting, protecting and monitoring the right of the child to be heard. Positive practices from foreign jurisdictions are used to suggest improvements to the activity of the Commission.

Building a South African Human Rights Culture in the Face of Cultural Diversity: Context and Conflict

Abstract South Africa has faced enormous challenges since the advent of democracy in 1994. One of the difficulties in the post-apartheid era has been the building of a human rights culture in the context of substantial cultural diversity. In this paper, the constitutional, judicial and institutional contexts – which have consolidated and supported the expression of human rights in the face of cultural diversity – are reviewed. The focus on cultural rights in the constitution is discussed, and the relevance of several constitutional institutions in terms of ensuring human rights, is mentioned. With a clear understanding of the constitutional, judicial and institutional contexts in place, the paper discusses the potentially inherent conflict between human rights and cultural rights, using gender-related issues as a proxy. Several examples of this potential conflict are discussed, including female circumcision, virginity testing and polygamy. The importance of human rights education for informing the debate about cultural and human rights in South Africa is emphasized. The answers to the challenges associated with the clash between cultural rights and human rights are not simple, although pragmatically – in addition to the role of the available constitutional, judicial and institutional structures – they could reside in a cross-cultural debate.

The Colour of Law, Power and Knowledge: Introducing Critical Race Theory in (Post-) Apartheid South Africa

Many legal scholars, practitioners and judges have overlooked the ways in which racial identities and hierarchies have been woven into social systems like law, labour, social power, knowledge and ideology. This article suggests that this oversight can be addressed by developing a post-apartheid critical race theory that puts ‘race’ back on the agenda by situating it within legal, political and social discourses. Such a critical race theory is proposed as an alternative to, and critique of, traditional (liberal/conservative) approaches to race and racism that emphasise individual autonomy, colour-blind constitutionalism and race-neutrality. Critical Race Theory (CRT) seeks to examine, from a legal perspective, the ways in which prevailing conceptions of race (and to some extent, culture and identity) perpetuate relations of domination, oppression and injustice. In South Africa, the necessity of such a critical engagement with race and law is justified by a long history of institutionalised white supremacy and white racial privilege which today coexists with ongoing (and lingering) forms of anti-black racism and racial exclusion. The starting point will be a broad discussion of competing approaches to race and racialism that inform equality jurisprudence and socio-political discourse followed by a theoretical discussion of the conceptual tools of US CRT and an analysis of post-1994 constitutional jurisprudence. The main aim is to problematise the contradictions and tensions that characterise South African equality jurisprudence and human rights discourses by exposing and critiquing the racial ideologies embedded in them. The broader concern of this article, however, is to point to the significance of critical race perspectives in South African legal and interdisciplinary thinking in a way that might disclose possibilities for racial justice and equality.

Explaining Postapartheid South African Human Rights Foreign Policy: Unsettled Identity and Unclear Interests

The end of apartheid in 1994 brought with it many domestic and international expectations about the kind of state the new South Africa would be and the foreign policies it would pursue. Many expected South Africa to pursue a human-rights-based foreign policy, but instead it has pursued a much more paradoxical foreign policy, with significant gaps between its stated commitments to human rights principles and its actions in support of those principles. This article explains these gaps. Delving into the literature on norms-based and interest-based explanations of state behavior, we argue that both approaches help explain South Africa's foreign policy actions. However, it is the unsettled nature of its identities and interests after 1994, as its leaders (particularly Thabo Mbeki) sought to reconcile a commitment to democracy and human rights with equally strong (if not greater) commitments to Afrocentrism and anti-imperialism, that provides the most interesting avenues for exploration.

Letter to the South African Human Rights Commission: A response to complaints regarding my cartoon

This is a copy of the letter sent by Zapiro to the South African Human Rights Commission. It contains a detailed response from Zapiro to criticisms of his inafamous 'Rape of Lady Justice cartoon.

Differing interpretations of reconciliation in South Africa: a discussion of the home for all campaign

The theme of reconciliation remains an important one in South African politics. The issue of reconciliation was recently highlighted by South African Human Rights Commission chairperson, Jody Kollapen. According to Kollapen, in South Africa we have a problematic narrow interpretation of reconciliation, one that presents reconciliation and transformation as being in opposition to one another. This paper explores some of the debates about reconciliation as a process and then relates these to the Home for All Campaign. This Campaign was aimed at encouraging white South Africans to acknowledge the injustices of the past and to commit themselves to healing divisions and reducing inequalities in contemporary South Africa. It conceived of reconciliation as a process in which the onus is on white South Africans to take the initiative in reconciling with black South Africans. The Campaign received much publicity and provoked debate but never managed to gain the support of a significant number of white South Africans. In this paper, I explore the reasons for the Campaign's failure to meet all of its objectives, relating this to contemporary South African discourse on reconciliation. I argue that the Campaign's interpretation of reconciliation was valuable and necessary and that it remains imperative in South Africa that white South Africans critically reflect upon past and present privileges and take the initiative in processes of inter-racial reconciliation.

Putting the ‘T’ into South African Human Rights: Transsexuality in the Post-Apartheid Order

Informed by narratives provided by self-identified South African transsexuals, whose lives span different periods of South Africa’s political and social history, this article seeks to explore how South Africa’s medical, legal and military establishments have exerted power over the transsexual body. A variety of studies outline the extent to which the apartheid state was a highly gendered state characterized by inflexible patriarchal norms and the dominance of violent and authoritarian forms of masculine expression. Hyper masculinization and militarization were explicit goals of the apartheid state. Deviance from the state’s prescribed gender norms was not simply socially unacceptable, it was, in many cases, punishable. South Africa’s post-1994 democratic Constitution, in contrast, explicitly outlaws discrimination on the basis of sexual orientation. But the democratic legal framework, which provides significant protections for freedom of sexual expression and freedom from discrimination for homosexuals has arguably had less of an impact on the lives of South Africa’s transsexual community. The state, even the post-apartheid state, has been loathe to move beyond the idea of a necessary correlation between the physical make-up of the body and the gender identity of a person in the way in which it has treated the idea of transsexualism.

The role played by the South African human rights commission's economic and social rights reports in good governance in South Africa

The preamble of the Constitution of South Africa, 1996 (the Constitution)contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to,inter alia, the constitutional mandate of the South African Human RightsCommission, the reporting procedure and the evaluation of reports.

Coetzee, Gordimer and the Nobel prize

ABSTRACT The South African writer, J. M. Coetzee, achieved prominence, in the 1980s, in a climate of political emergency in his own country. He was both attacked as politically evasive and praised as an artist of integrity. Referring in contrast to Nadine Gordimer, this paper speculates on Coetzee's being awarded the 2003 Nobel Prize in Literature. To win the Nobel Prize in Literature – indeed, in any field – signals a pinnacle of achievement. Although laureates have been getting younger the Prize, unlike most literary awards, is never awarded to the same author more than once. It suggests a judgment, therefore, on a body of work: on a consolidated achievement. In 2003 J.M. Coetzee won the Prize in Literature, the second South African to be so honoured, the first being the 1991 laureate, Nadine Gordimer. President Thabo Mbeki duly congratulated Coetzee. Yet shortly before his being awarded the Prize, Coetzee's novel Disgrace (1999) had been castigated in an ANC-government submission to the South African Human Rights Commission as symptomatic of white Afro-pessimism. The bleak vision of post-apartheid South Africa, in which the protagonist's daughter is raped by a gang of African youths, irritated the ruling party. was Coetzee implying what the government believes many white, Indian and coloured South Africans believe: that any African government is inevitably doomed to fail? Soon afterwards, whether coincidentally or not, Coetzee relocated to Australia. In comparison to the understated tenor of his novels penned “down under”, Disgrace – despite the international clamour about it – does suggest a dead end for Coetzee in his home country. Perhaps it also suggests a dead end for many people who have to find sustenance in the so-called new South Africa, in which constitutional democracy exists alongside poverty, high levels of illiteracy, an HIV pandemic, and violent crime including almost daily reports of the abuse and rape of women.

After the ball is over: commentary on the SAHRC inquiry

At some stage in this I must confront two things. Firstly, Arendt's distinction between 'race thinking' and 'racism'; and secondly, the shift from creationist to evolutionary thinking in the understanding of the marker 'race'. In the latter it becomes important to distinguish between that which exists as part of a creator's design, and that which has some aspect of the hoary old 'hopeful monster' thesis. Thus the motivations behind Saartjie Baartman before evolution, and the Gypsies and Jews of the Holocaust afterwards, are not the same. Baartman was a case of seeking to justify difference on the basis of created species, the Holocaust frequently invoked failed or faulty evolution. Was Darwinism (the ideology) a marker point in the shift from race thinking to racism? I think Arendt may have some clues! In introducing the Rhodes Journalism Review (RJR) theme issue (August 2000) on the South African Human Rights Commission (SAHRC) inquiry into racism in the media, Commission chair Barney Pityana notes that '... the inquiry was about racism, and not so much about freedom of expression. Much of the commentary and controversy leading to the public hearings had conveniently avoided this matter' (Pityana 2000). Clearly, one could easily dismiss this as a species of formalistic hairsplitting, designed to differentiate between expression and the attitudes that ground that expression. Whether these two concepts are distinct, continuous or identical, is a philosophical and not a legal issue. And in any case, I am not going to make the same kind of argument Pityana claims the newspapers made, because like him I don't think that freedom of expression was the issue anyway. However, I intend to examine the question of why the commission declined to offer at least some working definition of racism in its terms of reference. Pityana (2000) justifies this decision on the grounds that 'the Commission did not want to start with definitions, but sought to examine the narratives of race that were communicated to the South African media reading, listening and viewing public'. Many commentators felt, rightly, that in the absence of some marker or criterion that distinguished racism from other possibilities--like, say, poor training, slipshod practice, or inadequate ethical oversight--it would be possible for the commission to come to quite arbitrary decisions about what in fact constituted racist media reporting. As the response to the Interim report showed, especially with respect to the cultural studies-derived 'analysis' by Claudia Braude, many in the media felt that this is exactly what transpired. However, what seems missing from both the responses and the commission's reports (interim and final) is just what constitutes 'race' as a conception that grounds some kind of action (or its justification or motivation) as 'racist'. In the commission chair's own words, the inquiry was seeking to 'examine the narratives of race' that may have been communicated in the media. Clearly, even if this justification seems to many to have appeared after the fact, Pityana has a point in the sense that there has to be some conception of race present before any individual, group or society can institute racism as a practice or means of identification. In this regard, then, I read the commission as being alive to the distinction between race-thinking and racism, that Hannah Arendt drew half-a-century ago (Arendt 1951). If this is the case, however, then both the interim and final reports are open to the accusation (not necessarily a fair one) that those who produced them have lost sight of the historical and political specificity of particular instances of racism. I will not go into this issue, but instead I will try to make amends for the aporia arising from the commission's failure to confront the reality of race in its terms of reference--and in the responses to and discussion about the commission and its reports. …

Racial Discrimination in Post-Apartheid South Africa: A New Irreducible “Other”?

The xenophobia we see today is the same as the racism of the past.1 1 Zonke Majodina, Commissioner at the South African Human Rights Council, quoted in T. Mclachlan, “South Africa: Media ‘Simplistic’ When Writing On Race, Xenophobia.” Business Day, April 19, 2007.

The SAHRC's enquiry into racism in the media: Problematising state-media relationships

This article examines media discourses about the South African Human Rights Commission's (SAHRC) 1999/2000 enquiry into racism in the media. The article examines these discourses in the light of the history of the relation between South Africa's ethnic presses and the apartheid state. This history explains, in part, why the two key media discourses about the SAHRC's enquiry into racism in the media focused on the threat to press freedom and the illegitimacy of any form of state intervention into media performance. However, given the history of the media's support for the apartheid state, it is argued that in a vibrant democracy with a constitution that protects freedom of expression and freedom of the press, questioning media performance should be seen as a legitimate part of civil society's participation in maintaining democratic practice. In examining the tension between freedom of expression and the rights to dignity and equality, a critical race theory perspective is offered and it is suggested that this perspective, as well as that of critical legal theory, underpins South African jurisprudential approaches to this tension.

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

Dignity, discrimination, and context: New directions in South African and Canadian human rights law

The current approaches to equality law in South Africa and Canada place these jurisdictions at the forefront of serious and comprehensive judicial at tempts to give effect to substantive equality. These attempts to overcome formalism are processes, judicially acknowledged as such, and as yet far from complete. At the conceptual center of the development of substantive equality is the legal realization of human dignity: not an abstract, individualistic notion, but a concept about the relation between the individual and state, and individual and group, which is circumscribed by concern, respect and consideration.

A Second Look at the South African Human Rights Commission, Access to Information, and the Promotion of Socioeconomic Rights

This article takes a "second look" at the place of the South African Human Rights Commission and its role in the promotion of socioeconomic rights through monitoring. It argues that a "first look" at understanding drew heavily on international concepts of monitoring, including those of violations and progressive realization. These concepts have proven to be of limited usefulness in a national context where the justiciability of socioeconomic rights has been achieved. This "second look" proposes an alternative model of national monitoring of socioeconomic rights, based on greater participation, transparency, and a constitutional right of access to information.

Case Study: The Commission for Gender Equality, South Africa

South Africa is a country that reflects the dilemma and difficulties faced by a developing country which is attempting to achieve gender equality and the protection of women’s human rights in the face of a massive legacy of both racial and gender discrimination and oppression. The promotion of gender equality and the prohibition of gender-based discrimination are addressed in both constitutional and legislative measures, and also separate structures to support this objective. Debates are currently taking place, both inside and outside government, about the necessity for establishing separate commissions like the Commission for Gender Equality (CGE) and the South African Human Rights Commission (SAHRC), amongst others. This paper critically examines the functioning of the CGE within the context of rising concerns about gender mainstreaming and its impact. This paper maintains that constitutional provisions and institutions assist in mainstreaming and making visible the issue of women’s emancipation and gender equality.

Denying racism: Discursive strategies used by the South African media

In 1999 the South African media was the subject of a South African Human Rights Commission inquiry into racism. This article explores the discursive practices deployed by mainstream newspapers in response to these accusations of racism. It shows how several interlocking strategies of denial were used to remodel the field of racist practices and representations into a terrain suited to preserving white privilege. Specifically, the media used strategies of splitting, (dis)locating, relativising, trivialising, de-racialising and, ultimately, reversing racism. By constructing the terrain of racism in this way, the South African media were able to sidestep criticism by developing ‘acceptable’ arguments for reasonable prejudice that marginalise black experience.