The investigation was initiated after complaints from community members and business owners who alleged that the Department of Water and Sanitation (DWS) had, for years, allocated state-owned land along the shoreline of Hartbeespoort Dam in a manner that unfairly discriminated against black applicants. Complaints were also raised about noise pollution and lack of enforcement of planning, building and environmental by-laws and regulations in Hartbeespoort by the Madibeng Local Municipality (Madibeng), resulting in the escalation of tensions between mainly black and white residents.

The Commission investigated the complaints through correspondence with the parties and the conduct of stakeholder engagements with the residents of Hartbeespoort and Madibeng and a subpoena hearing against DWS. The investigation confirmed long-standing discriminatory patterns and administrative failures, necessitating the issuing of directives to restore compliance with the Constitution and human rights standards.

The SAHRC consequently made the following findings against both the DWS and Madibeng:

• DWS has, over many years, failed to redress racial and gender disparities in its leasing processes, resulting in ongoing indirect unfair discrimination against black and female applicants, in violation of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
• In turn, the indirect unfair discrimination against black and female applicants resulted in the violation of the applicants’ human dignity.
• DWS revoked Permissions to Occupy (PTOs) without notice or an opportunity for affected individuals to be heard, breaching the right to just administrative action.
• Madibeng failed to adopt and enforce by-laws regulating noise, planning and building controls, and failed to process planning and licensing applications timeously, violating residents’ rights to fair administrative action.
• These institutional failures have worsened racial tensions between black and white residents and business owners in Hartbeespoort.

In view of the findings, the SAHRC issued various directives, including the following:

• The DWS should finalise and adopt the revised lease policy and amend the related regulations within 180 days, and submit these to the Commission.
• The DWS should develop a comprehensive transformation plan, which should include numerical transformation targets, measures to address historical exclusion, timelines for processing outstanding leases, and a transparent communication plan, within 180 days.
• The DWS should review all revoked PTOs within 90 days, reinstate where appropriate, allow affected persons to make representations, and report back to the Commission. This directive does not preclude the DWS from ultimately revoking the PTOs, provided they have a lawful reason for doing so and they have followed due processes.
• The DWS should conduct a full audit of all occupiers along the dam within 90 days and submit a plan to ensure lawful occupation of the shoreline land, including action taken to address illegal occupation linked to historical privilege.
• Madibeng should, within 90 days, provide a disaggregated record of all planning, building and business licence applications and a 180-day plan to clear backlogs.
• Within 90 days, Madibeng should submit a plan outlining how it will promote transformation within the Hartbeespoort dam economy.
• Within 90 days, finalise and gazette outstanding by-laws on noise, environmental management and land use, and submit an enforcement strategy, as well as capacitate law-enforcement functions in Hartbeespoort to ensure effective and non-selective enforcement.
• All policies and plans developed in response to the directives must follow transparent, consultative processes with affected stakeholders.
• Parties with complaints relating to maladministration, corruption or irregularities in leasing are advised to approach the office of the Public Protector for redress.
• Parties with unresolved criminal complaints are advised to approach the North West Provincial Commissioner of SAPS for redress.

The SAHRC will continue monitoring compliance with the directives to ensure full implementation of these directives. The SAHRC also reserves the right to pursue further legal action to ensure compliance and enforcement of the report’s directives.

The report can be accessed here

Ends

Issued by the South African Human Rights Commission