THE LITTLE CHAPTER 9, THAT CAN
The SAHRC is often unfairly compared to its better-known Chapter 9 sibling; this comparison is rooted in a misunderstanding of the mandates of the State Institutions Supporting Democracy.
The South African Human Rights Commission (SAHRC) is often unfairly compared to its better-known sibling in the Chapter 9 family: The Public Protector. While it is an understandable comparison, it is one rooted in a misunderstanding of the respective mandates of the two institutions set up by the Constitution to do different things.
The mandate of the SAHRC (the Commission), in terms of Section 184 of the Constitution, is to promote respect and protection of human rights, promote a culture of human rights; and monitor both the development of, and the attainment of, human rights. Additionally, the Commission is tasked by the Constitution to investigate and take appropriate steps to secure redress where rights have been violated, and to conduct research and provide human rights education.
In terms of Section 182 of the Constitution, the Public Protector’s mandate is to investigate any conduct in state affairs or in public administration that may result in prejudice, to report on such conduct, and to take remedial action.
Commissioners provide the strategic oversight to the SAHRC; they operate as a board of governors and are integral to providing the strategic vision that guides the operational work of the Commission.
In December 2016, President Jacob Zuma confirmed the appointment of a 7-year term of the new board of Human Rights Commissioners. In January 2017 six newly appointed (and one returning) Commissioners assumed office under
the Chairmanship of Advocate Bongani Majola.
Within weeks of taking office, the Commission, under its new Board convened a National Investigative Hearing on Racism and Social Media in South Africa in February 2017, chaired by Advocate Majola.
The Commission utilises a range of mechanisms including litigation, alternative dispute resolution, investigations, and national investigating hearings (into systemic human rights violations).
As the Chapter 9 institution tasked with monitoring the attainment of human rights, the Commission had become acutely aware of the rising levels of hate speech being disseminated via social media platforms like Facebook and Twitter, and the resulting impact on social cohesion. The Commission was also concerned about the impact of social media on one of the SAHRC’s key constitutional mandate: the development of a culture of respect for human rights.
The National Hearing on Racism and Social Media was one of three hearings on systemic human rights violations, conducted by the Commission during 2016 to 2017. The other two – conducted prior to the appointment of the current board - included a National Hearing on The Impact on Mining Affected Communities, and a National Hearing on the Impact on Education of Protest Related Action.
Pursuant to its education mandate, during 2016-2017, the Commission conducted 47 outreach clinics in marginalised communities in remote rural and peri-urban communities,
reaching 4240 people. It conducted training workshops on human rights to equip 531 people to become human.
rights focal points. Significantly, all the towns and villages in which it held clinics were all places the Commission had never visited before including: Kabokweni, Nomakhoi, Tseng, Senwabarwana, Ebilanyoni, Slangspruit, Vingerkraal, and Klipspringer, to name a few.
The Commission’s advocacy and outreach activities, while intended to educate and inform on human rights, are also intended to research, monitor and gather information on human rights. As part of its advocacy programme, the Commission’s advocacy officers also gather information on pressing human rights concerns affecting these towns and villages, as told by the people experiencing them.
Coupled with its advocacy and outreach activities, the Commission, at Provincial Office Level, undertakes litigation in various courts across the country. Most of the litigation in Equality Courts relates to matters of hate speech. However, the SAHRC also litigates on a range of other rights enshrined in the Bill of Rights.
In 2016, the Commission approached the Pretoria High Court on behalf of residents of Arthurstone Village in Mpumalanga, after they were evicted by the Amashangana Tribal Authority from communal land. The eviction and demolition of homes had a devastating effect on the evicted women, children and older persons. In June 2016, the High Court set aside the eviction order and declared the eviction and demolition of homes as unlawful.
In 2017, the Limpopo Equality Court found in favour of the Commission after the SAHRC approached the court for relief – on behalf of a transgender learner - based on the violations of the learner’s rights to equality and human dignity. The Court found that the school principal, the MEC, and the Department of Education guilty of violating the learner’s rights to equality based on gender identity.
In 2017, the Vereeniging Equality Court found in favour of the Commission - acting on behalf of an asylum seeker - and ordered the Department of Labour to pay all Unemployment Insurance Fund (UIF) monies owed to the asylum seeker. The Court ordered the Department to amend its system in order to pay non-nationals working legally in the country and who had contributed to UIF.
August 2017 saw the end of one of the Commission’s longest strategic interest litigation matters: the hate speech case against former journalist and ambassador, Jon Qwelane. The case began in 2008 after Qwelane made disparaging statements about gay and lesbian people, which resulted in over 350 complaints to the Commission. In 2017, the South Gauteng High Court (acting as an Equality Court) found Qwelane guilty of hate speech.
In January 2018, the Commission released its Annual Trends Analysis Report for 2015-2016, on the trends in human rights based on complaints received by the Commission. The right to equality remains the key obstacle to the attainment of human rights. The top five most violated human rights, based on complaints received by the Commission are: the right to equality, unfair labour practices, lack of access to Section 27 rights (water, health care, food, and social security), lack of access to just administration, and violations of the rights of persons who are arrested and detained.
Notwithstanding the unfair comparison to its Chapter 9 sibling, the SAHRC, the Public Protector, the Auditor-General, and all the other State Institutions Supporting Democracy, are independent of government, subject only to the Constitution and the law, and report annually to Parliament. And all execute their mandates differently, as per the Constitution.
Constitutional mandates have to be adhered to in their entirety. The Commission exercises its broad mandate with a staff complement of 193 staff members across all 9 provinces, serves approximately 55 million people, covering an area of 1.2 million kilometres, from dazzling metropolises to towns that time forgot.
CONTACT DETAILS
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
ADDRESS: Forum 3 Braampark Offices, 33 Hoofd Street, Braamfontein, 2017
TEL: (011) 877 3600 WEBSITE: www.sahrc.org.za
SPOKESPERSON: Gail Smith, gsmith@sahrc.org.za