Equality is one of the focus areas informing the work of the South African Human Rights Commission in discharging its mandate to promote, protect, and monitor the realisation of human rights in South Africa.
The constitutionally guaranteed right to equality and the equal protection and benefit of the law must be understood against the country’s history of inequality, racism, and sexism. It is for this reason that, since its inception, the Commission has committed to the eradication of inequality and unfair discrimination, particularly based on race, colour, disability, age, social origin, and sexual orientation. Cognisant of abiding fault lines in society arising from systemic inequality, the Commission’s continued strategic focus on the right to equality is informed by a steady increase in equality related complaints lodged with the Commission and its pervasive persistence in society, despite policy and political reforms.
Inequality, by its endemic nature in South Africa, potentially results in the negation and violation of most other basic rights guarantees within the Bill of Rights.
Since 2012, the Commission has seen a steady increase in the numbers of equality related human rights violations. In the 2012/2013 financial year, equality related complaints accounted for 10% or 511 of all complaints received, and by 2015, equality related complaints constituted the highest number of complaints received by the Commission, totalling 16% or 716 of all complaints received.
Unfair discrimination based on race has consistently been the most complained about form of equality-based violation. An upsurge in race related equality complaints was particularly apparent during January 2016, following an upsurge of overt racist comments on various social media platforms.
A high number of labour relations complaints, arising largely from the violation of the right to equality in the workplace were also received. These complaints trends are indicative of the deep inequalities and intolerances that persist in the country 20 years into our democracy. The incidence of violations based on race, monitoring data and glaring inequalities provide a compelling basis for the continued focus on the promotion and protection of the right to equality by the Commission.
The work of the Equality portfolio is informed by the constitutional mandate of the Commission, relevant national legislation, and applicable international and regional instruments.
The Commission, through the Office of the Chairperson of the Commission undertakes various activities and initiatives to address the issue of unfair discrimination, particularly discrimination on the basis of race, sexual orientation and nationality or social origin. In respect of complaints, the Commission elects to litigate, mediate, investigate or itself hear a matter.
The Commission also releases an Equality Report (hyperlink to latest report on site) on an annual basis, which analyses the extent to which unfair discrimination persists in South Africa and makes recommendations for reform. In March 2016, the Commission hosted a national conference on racism, as part of its 20-year commemorative celebration. Participants were afforded an opportunity to reflect critically on the issue of racism and equality in our society. The conference resulted in Declaration Against Racism.
In fulfilling its mandate, the Commission produces an Annual Equality Report, which assesses the extent to which discrimination and inequality race persists in South Africa.
Co-operation with government departments and other key stakeholders
The Commission regularly engages government departments, other Chapter 9 institutions, regional and international supra national bodies, civil society and other stakeholders on issues relating to racism.
In March 2016, the Commission co-hosted the continent’s first Regional Seminar on finding practical solutions to end discrimination and violence based on sexual orientation and gender identity and expression (SOGIE). The Seminar was a joint initiative of the Commission, the Department of Justice and Constitutional Development, the Department of International Relations and Cooperation, and civil society organisations. An important outcome of the conference is the Declaration adopted at the Seminar, which calls upon governments to take necessary measures to protect the rights of Lesbian, Gays, Bi-sexual, Transgender and Intersex persons.
The Chairperson of the Commission is also a standing member of the Equality Review Committee, a Committee established in terms of section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act). The mandate of the committee is to advise the Minister of Justice on the operation of the Equality Act and other legislation, which have an effect on equality. Through its participation in this Committee, the Commission is enabled to influence and inform policies in the area of equality.
Section 11 Committees
In conducting its work on the Equality, the Commission relies on the advice and recommendations from the Equality Advisory Committee, a committee that has been established in terms of section 11 of the SAHRC Act, to advise the Commission on all equality related matters. Section 11 Committees are advisory structures comprised of experts from different disciplines and institutions.
Since 2012, the Commission has seen a steady increase in the numbers of equality related human rights violations. In the 2012/2013 financial year, equality related complaints accounted for 10% or 511 of all complaints received, and by 2015, equality related complaints constituted the highest number of complaints received by the Commission, totalling 16% or 716 of all complaints received. The Commission has through its findings issued a number of findings relating to race based hate speech, racism, and discrimination at schools, and discrimination on other listed grounds relating to foreign nationals.
Own-initiative Investigations and Litigation
In addition to investigating complaints lodged with provincial offices, the Commission also initiates its own investigations into equality-related violations.
The Commission initiated an Equality Court case in collaboration with the Ahmed Kathrada Foundation & Kirith P. Haria against Mr Z Sangweni, Mr P. Mfeka & Mazibuye African Forum in Durban on hate speech. Approximately, 26 of the 30 matters currently before the courts constitute equality based matters. The Commission has instituted proceedings in the Equality Courts in a number of matters, notably that o Jon Qwelane, where the court is being called on to declare homophobic comments in print media as constituting hate speech.
Site Inspections and Provincial Visits
The Commission undertakes planned and unannounced site visits to monitor and assess allegations of inequality, and to engage stakeholders on matters affecting human rights. Provincial visits and site visits seek to strengthen relations between the SAHRC and Provincial Legislatures, Municipalities and Provincial Government Departments, labour federations, community members affected by alleged human rights abuses, and to follow up on compliance with Commission findings and court judgments.
Recent site visits during a provincial visit to Mpumalanga include the Sizanani Informal Settlement in KwaBuqwa (families affected by the Lily Mine disaster), community members affected by the strike at Umbabha Farm Estate, Arthurstone village, and to Komatipoort to engage community members affected by blocked ID documents.
Unannounced monitoring visits are conducted at the Lindela Repatriation Centre. The Commission’s concerns around the rights of foreign nationals are reported to sector stakeholders and the Minister of Home Affairs for response.
The Commission conducts hearings on a range of issues relating to equality. In 2014, the Commission convened a national hearing on the Transformation of Institutions of Higher Learning in South Africa. This hearing was convened following a series of complaints of alleged unfair discrimination in various institutions of higher learning in South Africa.
In addition to reports arising from hearings, the Commission reports based on it’s ‘A’ status as a National Human Rights Institution to supranational bodies.
In August 2016 the Commission presented the National Human Rights Institution Report on the South African Government’s combined Fourth to Eight Periodic Country Report under the International Convention on the Elimination of Racial Discrimination to the United Nations Committee on the Elimination of Racial Discrimination for consideration at the 90th session.
The Commission has also provided inputs on South Africa’s Draft National Action Plan on Racism and Related Intolerance to the Department of Justice. Other policy and legislative reform submissions were made to Parliament in respect of the Equality Act.
International & Regional Conferences
The Commission attends regional and international conferences and other domestic platforms to ensure that it keeps up with national and international developments with respect to Equality. The Commission’s attendance is also intended to foster information sharing and collaboration with other institutions and the development of regional legislation on equality.
Recent engagements include:
• PAI LGBTI Conference May 2016 (PAI is the largest democratically organized LGBTI federation in Africa working on human rights and equality for LGBTI Johannesburg, South Africa)
• The Glion Human Rights Dialogue 2016 (‘Glion III’) in Vevey, Switzerland from 3-4 May 2016. The Dialogue provided a platform for representatives of States, OHCHR, the wider UN, and other key parts of the human rights system such as Special Procedure mandate-holders, members of Treaty Bodies, and NGOs, to offer their assessment of the key challenges they face and their vision of how to best overcome them to strengthen the Council and the wider UN human rights system.
• International Federation of Human Rights (FIDH) – meeting with FIDH, Lawyers for Human Rights, Ditshwanelo (Botswana) and ZimRights (Zimbabwe) to share FIDH’s plans for the 2016 National Congress.
• The Cape Higher Education Consortium (CHEC) on Transformation in Higher Education
• Attendance and keynote speaker at the opening of 2016 UNDP Annual Meeting on the Rule of Law in New York in June 2016.
• Chairperson of the Equality Review Committee of the Department of Justice’s campaign to raise awareness of Equality Courts.
• Chaired Hearings at Pan African ILGA Conference in South Africa 2016.
• Attended and participated at the 90th session of the Committee on the Elimination of Racial Discrimination (CERD) in Geneva.
• Attended and participated in the High Level NHRI related meeting in representation of Global Alliance of National Human Rights Institutions in Geneva in 2016
• Participation in Equality Court Awareness Campaign
Advocacy and public education
The Commission regularly conducts advocacy initiatives and public education on issues pertaining to equality. These include awareness raising through education, training, public information campaigns and outreach clinics, seminars, conferences, dialogues, roundtables, web publishing, and use of social media platforms.
Domestic Legislation, International And Regional Frameworks on Disability and Older Persons
The Commission’s work on the strategic focus area of equality is underpinned by the constitutional imperative of achieving equality.
Section 1 of the Constitution of the Republic of South Africa, 1996 identifies the achievement of equality and the creation of a non-racial and non-sexist society as one of the founding values of our constitutional democracy.
Section 9 of the Constitution guarantees the right of every person not to be unfairly discriminated against, directly or indirectly, on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origins, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
The equality provisions find form in a suite of post-apartheid legislation such as the Employment Equity Act; and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. The Equality Act is national legislation which operationalises the constitutional protections for equality. The Equality Act further prohibits unfair discrimination (on the grounds listed above), and prohibits hate speech and harassment in accordance with this constitutional injunction.
In addition to these constitutional and legislative provisions, South Africa is a party to a number of international human rights instruments, which promote the right to equality and non-discrimination. Some of these instruments include:
• the Universal Declaration of Human Rights (specifically Articles 1 and 7)
• the International Covenant on Economic, Social and Cultural Rights (specifically Article 3)
• the International Covenant on Civil and Political Rights (specifically Article 3)
• the International Convention on the Elimination of All Forms of Racial Discrimination (specifically Articles 2 and 3)
• the International Convention on the Elimination of All Forms of Discrimination Against Women (specifically Articles 2, 5 and 10)
• the African Charter on Human and Peoples’ Rights (specifically Articles 2 and 3)
In accordance with its constitutional and legislative mandate, the Commission will continue, through its various activities, to strive towards the achievement of the right to equality.
- Regional Seminar on finding practical solutions to end discrimination and violence based on sexual orientation and gender identity and expression – March 2016