1 Introduction to Human Rights in South Africa
South Africa has an ancient, rich and diverse history marred by flagrant human rights abuses, particularly during the colonisation and apartheid eras. Since democracy, milestones have been achieved in the progressive realisation of human rights for all South Africans, but much progress is still required.
South Africa was home to some of the oldest known ancestors of modern human beings, and later became inhabited by diverse indigenous communities.1 South Africa’s colonial history began with the establishment of a Dutch settlement in the seventeenth century. British colonisation followed in the nineteenth century. Dutch and British colonial powers governed South Africa in whole or in part from 1652 to 1910. The Anglo-Boer War (1899–1902) led to the creation in 1910 of the Union of South Africa as a dominion state within the British empire, when the boundaries of present-day South Africa came into being. However, the majority black population was neither consulted about the formation of the Union nor did the colonial authorities heed the protests against increasing racial exclusion and other violations of human rights.2 In 1948 the National Party came to power, and the government elevated de facto racial segregation into a formal framework of social engineering that came to be known as ‘apartheid’. South Africa became a Republic in 1961 and left the British Commonwealth. Under apartheid South Africans were segregated on the basis of race. Black, Indian and ‘Coloured’ persons were systematically discriminated against, oppressed and denied basic human rights. Internal resistance to apartheid, including the Sharpeville massacre in 1960 and the Soweto riots in 1976, was met by violent and repressive measures enforced by the state security. South Africa was increasingly condemned and isolated by the
The unbanning of various political movements and the release from imprisonment of political leaders in 1990 symbolically marked the start of negotiations which resulted in the dismantling of apartheid and the adoption of the interim Constitution in 1993. Justiciable human rights and a new court, the Constitutional Court, were first introduced into the Constitution under the interim Constitution in 1993.3 The parliament chosen as a result of the first democratic elections in 1994 sat as a constitutional assembly and drafted a final Constitution for a constitutionally-democratic South Africa. The Constitution of the Republic of South Africa, 1996, became effective on 4 February 1997 and remains in force. The Constitution provides for a Bill of Rights, which protects both civil and political rights as well as economic, social and cultural rights. These developments led to South Africa being welcomed back into the international community of states and becoming a state party to various international human rights instruments.
There are numerous domestic institutions responsible for the promotion and protection of human rights in South Africa. As part of the process of democratisation, the Truth and Reconciliation Commission played an instrumental role in addressing violations committed during apartheid. The Commission for the Restitution of Land Rights has also sought to equitably redistribute land. Other key institutions include the South African Human Rights Commission (sahrc), mandated by the Constitution to protect, promote and develop human rights; the Commission for Gender Equality (cge); the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (crl Rights Commission); and the Electoral Commission. Further, the Public Protector functions to uphold human rights and support and defend democracy and protect the South African population in its engagement with the public administration.
Following the democratisation of South Africa, the Judicial Service Commission (jsc) was introduced and functions to make recommendations for the appointments of judges and deals with complaints brought about judges.4 The jsc functions to ensure an inclusive representative process of judicial appointment and replaces exclusive executive discretion.
However, there have also been significant human rights milestones in South Africa: basic social and economic rights such as the right to education, to housing and to food, and to social security have, since the demise of apartheid, been extended to many more South Africans. The judiciary in South Africa is very active in the realisation of human rights. The Constitutional Court has played a vital role in the realisation of human rights and holding the government accountable for violations of human rights. For example, the Constitutional Court declared the death penalty unconstitutional as a violation of the right to life and the right to dignity.5 In other ground-breaking cases the Constitutional Court held the government accountable for the realisation of socio-economic rights. The courts adopted a ‘reasonableness’ test to determine whether the measures employed to achieve progress are adequate. This approach has been instrumental regarding the right to access to clean water6 and access to housing in relation to eviction.7 Constitutional jurisprudence illustrates the important role the judiciary plays in social justice in South Africa.
2 Relationship of South Africa with the International Human Rights System in General
South Africa is part of the international human rights system at both the global and regional level and since 1994 has played an active role in the international human rights community.
Regarding international criminal law, South Africa has ratified the International Criminal Court (icc) Statute. Noticeably, while the icc has not opened an investigation in respect of events in South Africa, there has been a turbulent relationship between the icc and South Africa. In 2017 the icc held that South Africa was in breach of its obligations when it failed to arrest Oman Al-Bashir, the President of Sudan.11 This issue also highlights South Africa’s contradictory obligations as African Union (au) member and under the icc Statute. The au’s call on its members to respect the immunity of heads of state,12 stood in stark contrast to the icc Statute which requires South Africa to arrest Al-Bashir and cooperate under article 86 of the icc Statute. South Africa took steps to withdraw from the icc Statute after the icc had
On the regional plane, South Africa is a member of the au, has ratified the African Charter on Human and Peoples’ Rights (African Charter), the Organisation of African Unity (oau) Convention on Refugee Rights,14 and the African Charter on the Rights and Welfare of the Child (African Children’s Charter), which to a large extent corresponds with the UN Convention of the Rights of the Child (crc).15 However, the regional system has not been instrumental in the realisation of human rights in South Africa. South Africa has accepted the jurisdiction of the African Court on Human and Peoples’ Rights (African Court), but has not accepted individual direct access to the Court,16 therefore complainants have to submit their complaints first to the African Commission on Human and Peoples’ Rights (African Commission).17
Although South Africa has a dualist system of law, the South African Constitution is very ‘international human rights law friendly’.18 The President is empowered to negotiate and sign international agreements.19 As a general rule these treaties must be ratified by Parliament in order to bind the country. An international agreement becomes part of domestic law only once it has been
International law further influences South Africa through the judiciary. International human rights law must be considered when a court interprets the Bill of Rights;22 and every court must favour an interpretation of legislation that is consistent with international law over one that is inconsistent with it.23 Additionally, during such interpretation, courts must ‘promote the spirit, purport and objects of the Bill of Rights’.24 The Bill of Rights is largely based on the main international human rights instruments.
The conduct of officials offers insight into the nature of the relationship between international human rights systems and South Africa. For example, reported human rights violations at centres for refugees and asylum seekers, such as the Lindela Repatriation Centre, have given rise to findings by the UN that have been disregarded by officials. Despite being party to various refugee treaties, South Africa has not implemented these obligations into domestic legislation. Organisations, including Human Rights Watch and Lawyers for Human Rights, have reported a ‘worrying extent of human rights violations’.25 Such reports have been prevalent since at least 1998.26 In 2017 the UN Human Rights Council urged the South African government to provide adequate health care and redress human rights abuses.27 However, little has been done to rectify the conduct towards refugees and asylum seekers.28
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4
4.1 Role of the UN Human Rights Treaties
4.1.1 Formal Acceptance of Treaties
South Africa has ratified seven of the nine core UN human rights treaties.
On 29 January 1993, during the last days of apartheid and at the start of the transitional phase to the country’s first democratic elections, the government of then President fw de Klerk signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat), the crc and the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) as a signal to the international community that the flagrant human rights abuses committed during apartheid and South Africa’s isolation from the international community were over. Upon transition to a democratic government in 1994, the newly-elected President, Nelson Mandela, signed the International Covenant on Civil and Political Rights (ccpr), the International Covenant on Economic, Social and Cultural Rights (cescr) and the Convention on the Elimination of All Forms of Racial Discrimination (cerd) on 3 October 1994 to coincide with his visit to the UN General Assembly.29 One year into democracy, the South African Parliament ratified crc and cedaw on 16 June and 15 December 1995, respectively, without reservations. Before the ratification of crc, there were efforts to address issues of children, repression and the law in South Africa.30 Leaders of the anti-apartheid struggle, such as Nelson Mandela and Oliver Tambo, placed enormous importance on children’s rights. On 16 June 1994, when the National Children’s Rights Committee (ncrc) task team delivered the National Programme of Action for Children (npac) to then President Nelson Mandela, he emphasised the need for a new democratic South Africa to place children’s rights at the highest level. The promise of Nelson Mandela to place children’s rights at the highest level was reflected in the establishment of the Office on Child Rights within the presidency to coordinate children’s rights. In 2009 children’s rights were moved to the Department for Women, Children and Persons with Disabilities (dwcpd), and in 2014 children’s rights were moved to the Department of Social Development. The historical importance of children’s rights in a new democratic South Africa has contributed massively to the huge impact that crc has had in South Africa, compared to other treaties.
The democratic government took another monumental step in fulfilling South Africa’s international commitments when it ratified cerd, ccpr and
On 30 March 2007 South Africa signed the Convention on the Rights of Persons with Disabilities (crpd). Six months later, on 30 September 2007, the country’s Parliament ratified crpd. The prompt signing and ratification of crpd by South Africa is connected to the participation of South Africa in the crpd drafting process and the role of the country as one of the leading forces in the campaign for, and eventual adoption of, crpd.32
The ratification of cescr did not take place until 12 January 2015, over 20 years after the country had signed the treaty. The long delay in ratification has been ascribed to bureaucratic issues with respect to the lead department that was expected to take the lead process in the ratification of the treaty.33
South Africa is yet to ratify the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw) and the Convention for the Protection of All Persons from Enforced Disappearance (ced). While the political atmosphere and general hostility towards foreigners may be a crucial factor in the non-ratification of cmw, the non-ratification of ced may be as a result of bureaucratic hurdles.
The four substantive Optional Protocols to the UN treaties have been acceded to or ratified by South Africa. The Second Optional Protocol to ccpr (op2-ccpr) was acceded to on 28 August 2002. South Africa acceded to the Optional Protocol to the crc on the Sale of Children, Child Prostitution and Child Pornography (op-crc-sc) and ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (op-crc-ac) on 30 June 2003 and 24 September 2009, respectively. Even though the Optional Protocol to cat (op-cat) was signed on 20 September 2006, South Africa only ratified op-cat on 20 June 2019.34 The ratification of op-cat was delayed because of the delay of South Africa to pass legislation criminalising torture.35 This obstacle was removed with the
With respect to the individual complaint mechanisms, South Africa accepted the individual complaint mechanisms of cerd and cat by making the article 14 declaration and article 22 declaration under the respective treaties on 10 December 1998. The individual complaint mechanisms of the Human Rights Committee (HRCttee), the cedaw Cttee and the crpd Cttee were accepted through the ratification of the First Optional Protocol to ccpr (op1-ccpr), the Optional Protocol to cedaw (op-cedaw) and the Optional Protocol to crpd (op-crpd) on 28 August 2002, 18 March 2005 and 30 November 2007 respectively.
South Africa is yet to ratify the Optional Protocol to cescr (op-cescr), but is in the process of considering the Optional Protocol’s consistency with domestic and international law to which South Africa is obligated, with a view to ratifying op-cescr.37 South Africa also has not ratified the Optional Protocol to crc on a Complaints Procedure (op-crc-cp). The argument given by the government for non-ratification is that the country’s domestic legal framework offers sufficient protection for children’s rights.38
4.1.2 Level of Awareness
The level of awareness of the treaties among government officials is fairly high. Government departments such as the Department of Justice and Constitutional Development, the Department of Basic Education, the Department of Arts and Culture, and independent state institutions such as the sahrc and the cge implement programmes that are designed to increase awareness of the rights in international human rights treaties and the Constitution of South Africa.39 Various government agencies and departments speak to the steps
The treaties have also been frequently discussed in parliamentary debates. The National Assembly has raised the issue of the implementation of the treaties, cos as well as the submission of state reports during parliamentary debates. Generally, Parliament becomes aware of the treaties and its reporting mechanisms through the engagement of its oversight committees with lead departments that are in charge of the different UN treaties.44
The level of awareness of the treaties in the judiciary is generally high. As will be discussed througout this chapter, the treaties have featured prominently in the decisions of South African courts. However, because of the status of international law in the South African legal system, the treaties have mostly played interpretive roles in court decisions. Additionally, the treaties have generally featured in decisions where ngos are parties in strategic litigations or have made amicus curiae submissions before the court. It is highly doubtful
There is a relatively high level of awareness of the treaties among ngos, but greater reliance on and more reference is made to the Constitution and national policies. This may be because of the dualist system of South Africa, in which case international treaties are not directly enforceable before the courts except where they have been domesticated as part of South African laws. There is no specific preference for regional treaties over UN treaties among the ngos. The practice is usually to rely on the instrument that offers the highest form of protection on specific issues.
Generally, the UN treaties form part of the Bachelor of Laws curricula and are taught as part of an optional subject of international human rights law in South African universities.49 In addition to the Bachelor of Laws curricula, there are different university departments that offer specialised programmes on specific treaties. The Centre for Human Rights (chr) at the University of Pretoria offers advanced short courses on different thematic rights that place extensive reliance on the UN human rights treaties.50 The chr also offers five different Masters’ programmes which, among other things, educate students on the different UN human rights treaties.51 The University of Cape Town also offers a Higher Certificate in Disability Studies which is anchored in the Department of Health and Rehabilitation Sciences.52 The Faculty of Law, Stellenbosch University, through its Socio-Economic Rights and Administrative Justice Research Project, promotes the role of law in improving access to administrative justice and socio-economic rights.53 Further, at the Dullah Omar Institute,
The crc, cedaw, crpd and cescr are the four treaties that have generally received the highest level of attention from stakeholders. Considering South Africa’s history of racial discrimination, cerd has surprisingly received the lowest level of attention from stakeholders and the level of awareness of cerd seems to be the lowest among the treaties.
4.1.3 Human Rights Defenders
Civil society organisations (csos) in South Africa are diverse and very active. The high level of cso engagement in South Africa has its roots in the struggle against numerous injustices perpetrated by the apartheid regime. However, csos that is advocacy oriented, as opposed to service oriented csos, have received less financial support and protection from the government.55 Generally, there are hostility between the state and human rights defenders who advocate on sensitive national issues such as land and housing, labour rights, gender-based violence, sexual orientation and gender identity rights, corporate and government accountability and transparency, and the impact of extractive industries on local people, and the environment.56 The Minister of State Security stated that some human rights defenders were collaborating with foreign countries to disrupt the country.57 The UN Rapporteur on Human Rights Defenders has also reported on the lack of response from South Africa on the situation of human rights defenders.58 Human rights defenders have also been attacked and killed by unknown third parties, and in most of these instances there has been poor investigation by the state.59
4.1.4
In 2012, the Department of Justice and Constitutional Development, together with the sahrc, established the Interdepartmental Committee on International Treaty Obligations (idc), to facilitate the data gathering, drafting and consultation processes required for the finalisation of state reports. The idc has its membership in all government departments. However, the idc has generally been ineffective and the country has usually resorted to ad hoc processes through lead government departments to prepare state reports to the different treaty bodies.60 The Department of Justice and Constitutional Development has embarked upon a process to develop a National Mechanism for Reporting and Follow-Up (nmrf) on South Africa’s human rights treaty obligations. Recommendations received from the various treaty bodies are taken for noting by cabinet. Government departments are notified of recommendations through the idc and through workshops held to publicise the recommendations and the implementation and planning needed in light of received recommendations.61
4.1.5 Treaty Body Membership
Generally, in order to select nominees domestically, the Department of International Relations and Cooperation requests nominations from different government departments. After these names have been submitted, the department makes a final selection. However, research revealed that this approach has not been consistent in practice.62 One of the treaty members whose appointment has increased the visibility of a UN treaty is Sandra Liebenberg, a member and Vice-Chairperson of the cescr Cttee.63 Although her appointment as a member of the cescr Cttee was not covered in the local
4.2
4.2.1 Incorporation and Reliance by Legislature and Executive
The seven treaties ratified by South Africa have had a significant impact on laws and policies in South Africa. In most instances the laws and policies made express references to the relevant treaties; on a few occasions, to the cos of the treaty bodies, and in other instances the impact was realised through the utilisation of the treaties by stakeholders during the drafting of the laws and policies.69 The ratification of op-cat has also influenced institutional reforms.70
4.2.2 Reliance by Judiciary
By virtue of section 231(4) of the Constitution, South Africa is a dualist state. As such, international law only becomes law in South Africa when it has been enacted into law by national legislation. The only exception to the rule is when the provision of the treaty is self-executing, but the jurisprudence is not yet clear on the meaning of self-executing treaties. Section 39(1)(b) of the Constitution obliges South African courts to consider international law as a tool to interpret the Bill of Rights. To this extent, the treaties have generally been applied as interpretive guides on different occasions by the judiciary. However, there are also instances in which the state reporting process was used as a basis of factual scenarios and set of circumstances to influence the opinions of courts.71 The South African judiciary has also influenced the jurisprudence of the UN treaty bodies.72
The impact of the treaties on the South African judiciary can be enhanced or impeded by the approach of different judges. In the case of Gauteng Provincial Legislature In Re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995,73 the lead judgment by Mahomed dp for example made no reference to cerd. However, Sachs J in a separate judgment, which applied internationally accepted principles of minority rights protection, made reference to cerd in espousing the principle of affirmative action.74
4.2.3
The treaties have had the most impact on the work of the South African Law Reform Commission (salrc), the sahrc75 and the cge. The Truth and Reconciliation Commission on some occasions made reference to cat in its final report. Apart from the above stated state institutions, the treaties have not had a discernible influence on the work of other independent state institutions such as the crl Rights Commission, the Office of the Military Ombud, and the Judicial Inspectorate for Correctional Services (jics). However, with the establishment of the npm, op-cat could likely become more influential in the works of the jics.76
4.2.4 Impact on and through Non-state Actors
csos have played crucial roles in promoting the influence of the UN treaty system in South Africa. csos have advocated the compliance with South Africa’s obligations under the different treaties and have even ingeniously deployed the state reporting process through strategic litigation. There has been a robust engagement by csos with the treaty body state reporting process. However, there have not been significant engagement with the complaint mechanisms of the UN treaty system. The lack of engagement with the individual complaint mechanisms of the UN is connected with the existence of a reliable and independent judicial system in South Africa.
4.2.5 Impact of State Reporting
The state reporting process has gained more traction over the years. There are signs of improvement in the quality of the state reports and conformity with reporting guidelines and increased participation of csos in the state reporting process. There is also increasing awareness of the importance of
4.2.6 Impact of Individual Communications
The influence of the individual communications procedure has been minimal, with only three communications submitted over the study period.78 Only one treaty body, the HRCttee, has found a single violation against South Africa.79 The low level of utilisation of the individual complaint procedure in South Africa is connected to the general belief by stakeholders that the country’s domestic legal framework offers sufficient protection for human rights.80
The government’s response suggests that it does not accept the legitimacy of UN individual complaint mechanisms. South Africa did not cooperate with the HRCttee during the case of Bradley McCallum, the only case in which it was found to be in violation. It also took no significant steps to implement the decision of the HRCttee.81 In defending the approach of the country to the HRCttee’s decision, the Minister of Justice and Correctional Services in his briefing before the National Assembly’s Committee on Justice and Correctional Services, stated:82
We are compliant with international conventions on offender policy. For example, the St Albans matter in which a gang member killed a correctional facility official, required significant clean-up to the extent of almost war. However, these offenders ran to the UN and claimed mal-treatment and torture that resulted in a finding against sa by the UN that the Department intends to challenge. Previous cases have found on the side of sa that officials did not act too heavily. Only two individual complaints have been filed against South Africa and the country was found in violation in one of the cases. These officials work in extremely difficult conditions.
5 Detailed Impact of the Different UN Human Rights Treaties in South Africa
5.1 International Convention on the Elimination of All Forms of Racial Discrimination
5.1.1 Incorporation and Reliance by Legislature and Executive
Even though South Africa had not ratified cerd as at the time of drafting the Constitution, traces of the Convention are evident in the 1996 Constitution. The prohibition of hate speech in section 16(2) of the South African Constitution was influenced by article 4 of cerd.83 The influence of cerd is also evident in the express reference to cerd in the Promotion of Equality and Prevention of Unfair Discrimination Act (pepuda),84 the Prevention and Combating of Hate Crimes and Hate Speech Bill,85 and the Employment Equity Act.86 In terms of government policies, cerd was influential in the definition of racial discrimination and the role of government in combating and eliminating racism, racial discrimination, xenophobia and related intolerance.87
5.1.2
cerd was influential in the Gauteng High Court’s decision in the case of Duduzile Baleni and Others v Minister of Mineral Resources and Others.88 In that case, the fifth respondent, Transworld Energy and Mineral Resources (sa) Property Limited (tem), an Australian company, had applied for a mining right for titanium ores and other heavy minerals in the Xolobeni area of the Eastern Cape. The Court placed great reliance on General Recommendation 23 of the cerd Cttee on indigenous people in deciding that the consent of (as opposed to mere consultation with) the community members who will be negatively affected by the mining operation is the appropriate requirement for tem to mine on the ancestral lands of the applicants’ community.89 Similarly, the Equality Court used cerd as an interpretive guide in the case of Nelson Mandela Foundation Trust and Another v Afriforum npc.90 In that case the defendant contended that section 10(1) of the Equality Act applies only to hate speech communicated by words. The Equality Court stated that article 20(2) of the iccpr and article 4 of the cerd prohibit hate speech in the widest sense to include any expression of ideas and neither instrument draws a distinction between verbal or non-verbal advocacy or communication of racial hatred.91 The Court ruled that hate speech goes beyond mere words and that the display of the previous (‘apartheid era’) South African flag constitutes hate speech against black people.92 cerd has also been quite influential in the jurisprudence of the Labour Court. In the case of Francis Kanku and Others v Grindrod Fuelogic,93 the Labour Court referred to cerd in conjunction with section 9(3) of the Constitution in reaching its conclusion that nationality as a reason for dismissal is discriminatory. In addition to the above, cerd has generally been applied as interpretive guide by the Constitutional Court,94 the High
5.1.3 Impact of State Reporting
South Africa has submitted two reports to the cerd Cttee. The two reports were each submitted after a delay of approximately four years.
There is no indication as to whether the reports were prepared in consultation with csos.98 The sahrc submitted shadow reports to cerd both these reports and made oral presentations before the cerd Cttee. The active participation of the sahrc in the cerd reporting process resulted in recommendations by the cerd Cttee urging the state to implement the recommendations of the sahrc and increase the budget of the sahrc. There is no record of ngo submission of shadow reports to the initial report, but two ngos submitted shadow reports to the combined fourth to eighth periodic report.99 The two reports were comprehensive and addressed thematic issues contained in cerd.100 The presentation of the initial report was made by the Minister of Justice while the combined fourth to eighth periodic report was presented by the Deputy Minister of Justice.
The key issues in the cos to the combined fourth to eighth periodic report are statistical data; institutional strengthening of the sahrc; hate crime and hate speech; special measures for disadvantaged communities; the situation of black and marginalised ethnic women and girls; situation of indigenous peoples; and the situation of non-citizens. In line with the requirements of the cerd Cttee, South Africa submitted a follow-up report on measures taken to strengthen and comply with the recommendations of the sahrc, and Prevention and Combating of Hate Crimes and Hate Speech Bill.
Although some positive progress was reported on these issues, the impact of the cos on the reported measures is not discernible. In an interview, a government official stated that the dialogue with the cerd Cttee was not particularly useful because the cerd Cttee does not understand the South African context.107 There also is some perception that since cerd was largely drafted as a response to the apartheid regime in South Africa, it has lost its relevance with the end of apartheid.
5.1.4
cerd has impacted the work of the sahrc. For the purposes of article 14(2) of cerd, the sahrc is the competent body to receive and consider petitions from individuals or groups of individuals who claim to be victims of any of the rights in cerd. The sahrc relied extensively on the provisions of cerd and the cos of the cerd Cttee to South Africa in determining South Africa’s compliance with international law obligations with respect to the implementation of special measures.108 In advocating comprehensive and disaggregated socio-economic data for purposes of special measures, the sahrc referred to the cerd Cttee’s 2006 and 2016 cos that requested government to provide more exhaustive statistical demographic data that includes social and economic indicators and, furthermore, accounts for indigenous groups and non-citizens.109
There is no discernible impact of cerd on the work of other independent national institutions.
5.1.5 Impact on and through Non-state Actors
cerd has influenced the activities of trade union organisations in South Africa. The state reporting process of cerd was used by Solidarity Trade Union’s Centre for Fair Labour Practices, and the Police and Prisons Civil Rights Union (popcru) to voice opinions on the Broad-Based Black Economic Empowerment Act.110
5.1.6 Other Measures
Following the devastating incidents of xenophobic attacks in South Africa in 2008, the cerd Cttee on 11 March 2011, under its early warning measures procedures, sent a letter to South Africa,111 expressing its concerns about xenophobic attacks and racist violence on refugees and asylum seekers in South Africa. The cerd Cttee requested South Africa to provide information on measures taken or envisaged to combat xenophobic attitudes and to stop racist violence
5.1.7 Brief Conclusion
Even though the cerd has had some impact in South Africa, its influence has mostly been in the form of indirect impact on laws, policies, judicial decisions and on the work of non-state actors in South Africa.
One of the reasons for the high level of indirect influence of cerd in South Africa is the enactment of national laws that are specifically targeted at addressing South Africa’s particular history of racial injustice as a result of apartheid. One of the major focuses of a new South African democracy was the need to address residual and systemic racism that arose from a legacy of previously institutionalised injustices. The need to deal with the social legacy of legalised racism has resulted in the promulgation of several policy frameworks on the elimination of racial discrimination and affirmative actions for previously disadvantaged groups.112 The availability of national laws and policies that are more specific to the South African reality has resulted in more reliance on national laws than on cerd.113 The constructive dialogue between the cerd Cttee and the South African delegates reveals that the cerd Cttee and the delegates were not able to reach a standpoint on issues of statistical information and the South African concept of ‘unfair discrimination’.114
5.2
5.2.1 Incorporation and Reliance by Legislature and Executive
The influence of ccpr on the South African Constitution can be derived from the strong overlap between some of the rights in ccpr and the Bill of Rights in the Constitution. The Bill of Rights provides for equality,115 the right to life,116 the abolition of slavery,117 and liberty and security of the person,118 which includes a prohibition against arbitrary arrest. Propaganda for war and advocacy of racial hatred is prohibited in both.119 Section 31 of the Bill of Rights is a replica of article 27 of ccpr.120 ccpr was also used by stakeholders in their submissions to the committee responsible for the Bill of Rights in the final Constitution.121
Apart from the similarities between the rights provided for in ccpr and the rights guaranteed in some national laws, such as the Electoral Act, the Municipal Electoral Act,122 the National Water Act, the Employment Equity Act, the Social Assistance Act, the Labour Relations Act, the Recognition of Customary Marriages Act, the Municipal Structures Act, and the Choice on Termination of Pregnancy Act,123 the influence of ccpr is difficult to ascertain.
Some influence of ccpr can be found in the provisions of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, launched on 25 March 2019. The National Action Plan referred to article 2 of ccpr and General Comment 31 of the HRCttee in asserting that states assume obligations and duties under international law to respect, protect and fulfill human rights for all persons within their territory or jurisdiction, without discrimination of any kind.124
5.2.2
The provisions of ccpr have, to a significant extent, been referred to or invoked by the judiciary.
Among the notable instances where ccpr played a significant role in the Court’s reasoning is the case of Amabhungane Centre For Investigative Journalism npc and Another v Minister of Justice and Correctional Services and Others.125 The North Gauteng High Court referred to the cos126 of the HRCttee to South Africa’s initial report in its consideration of the legality of sections 30, 35 and 37 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (rica) 2002. The HRCttee in its cos had required South Africa to ensure that the interception of communications by law enforcement and security services is carried out only on the basis of the law and under judicial supervision.127 The Court ruled that the absence of judicial oversight within the rica’s regime for the management, usage and accessibility controls of data that are intercepted not only amounts to an ineffective safeguard, but is no safeguard at all.
Similarly, in the case of Mlungwana and Others v State and Another,128 the Constitutional Court referred to the decision of the HRCttee in the case of Kivenmaa v Finland as an interpretive guide in ruling that ‘[t]he possibility of a criminal sanction prevents, discourages, and inhibits freedom of assembly, even if only temporarily’.129
The Constitutional Court has also used the ccpr as interpretive guide in the cases of Kaunda and Others v The President of the rsa and Others;130 Alex Ruta v Minister of Home Affairs;131 de v rh;132 The State v Makwanyane and Mchunu;133 mec for Education: KwaZulu-Natal and Others v Pillay;134 Richard Gordon Volks no v Ethel Robinson and Others;135 Centre for Child Law and Others v Media 24 Limited and Others; Kruger v National Director of Public
5.2.3 Impact on and through Independent State Institutions
Evidence of the impact of ccpr is visible in the work of the salrc on Sexual Offences and Adult Prostitution;144 and on Privacy and Data Protection.145 The sahrc submitted its own report to the HRCttee.
5.2.4 Impact on and through Non-state Actors
The findings of the HRCttee against South Africa in the case of Bradley McCallum v South Africa was published on the website of the African Policing Civilian Oversight.146 A review of the shadow reports submitted to the HRCttee illustrates the influence of ccpr on the work of csos such as Gender DynamiX (gdx), Iranti-Org, and Legal Resources Centre.
5.2.5 Impact of State Reporting
South Africa has submitted only one report to the HRCttee. The report was submitted after a prolonged delay of 14 years. South Africa submitted the report after the HRCttee had announced its intention to review South Africa in the
The report was prepared without consultations with civil society.149 The effect of the lack of consultation in the preparation of the state report was the submission of 13 thematic and four joint shadow reports to the initial report. The sahrc also submitted a shadow report.150
The delegation that presented the report in Geneva was high level and experienced. The Minister in the Presidency responsible for women, the Deputy Minister of the Department of International Relations, the Deputy Minister of Justice and Constitutional Development and the Deputy Permanent Representative of South Africa in Geneva were among the delegates who attended the session of the HRCttee in which the report was considered.151 The report was presented by the Deputy Minister of Justice and Constitutional Development.152
The pertinent issues in the cos are racism and xenophobia; harmful cultural traditions and practices; the protection of the rights of persons living with hiv; violence based on gender, sex, sexual orientation and gender identity; corporal punishment; excessive and disproportionate use of force by the police; and violence, torture, ill-treatment, deaths, and conditions of places of detention. The COS also highlighted human rights violations in the areas of juvenile justice; migration; the protection of human rights defenders; the right to privacy and interception of private communications; and indigenous peoples’ rights.153
The key recommendations selected for follow-up by the HRCttee are the implementation of recommendations of the trc and conditions of places of detention. Even though South Africa has fully engaged with the follow-up
5.2.6 Individual Communications
Two individual communications (Gareth Anver Prince v South Africa and Bradley McCallum v South Africa)155 have been lodged and finalised against South Africa. In the case of Bradley McCallum v South Africa, the HRCttee found South Africa to be in violation of article 7 of ccpr read in conjunction with article 2(3) and article 10(1) of ccpr.156 The HRCttee required South Africa to investigate the claims of Bradley McCallum, prosecute those responsible for the violation of his rights, provide reparation and adequate compensation to him, submit information on measures taken on the HRCttee’s views within 180 days and publish the HRCttee’s views.157 The government did not cooperate with the HRCttee during the process of consideration by the Committee. Despite several requests from the HRCttee, the state did not submit any information on the admissibility or the substance of McCallum’s claim.158 However, the South African government published the findings of the HRCttee in national newspapers in 2011 and outlined the findings of the HRCttee and actions taken by the government.159 The Department of Correctional Services reopened the investigation into the actions of its officials with respect to the claims of McCallum.160 However, the National Prosecuting Authority decided not to prosecute anybody as there was not enough evidence for prosecution.161 The state is yet to pay reparation or compensate the victim in accordance with the views of the HRCttee. Disciplinary proceedings were not pursued against officers involved in the incident because of a legal opinion on the matter.162
In the case of Gareth Anver Prince v South Africa, the HRCttee found that South Africa had not breached any article of ccpr.164
5.2.7 Brief Conclusion in Respect of ccpr
ccpr has had some influence on policies and legislation in South Africa. The treaty has also in some way impacted on the work of the sahrc and the salrc. Beyond the normative provisions of the treaties, the cos of the HRCttee has also impacted the courts. However, it appears that the general influence of ccpr is restricted because of the general nature of the categories of rights covered in the treaty. There is a general preference among stakeholders to substantially use other specialised treaties that provide for the rights of specific categories of persons as opposed to the general provisions of ccpr. There is a need for more awareness in government departments about ccpr. This need transpires from the 2017/2018 annual report the Department of Justice and Constitutional Development: While reporting on the submission of South Africa’s ccpr initial report, it erred by referring to the ‘Human Rights Committee’ as the ‘Human Rights Council’.165
5.3 International Covenant on Economic, Social and Cultural Rights
5.3.1 Incorporation and Reliance by Legislature and Executive
cescr played an important role in the enactment of socio-economic rights in the South African Constitution. It was relied on by stakeholders during the drafting of the final Constitution.166 The Constitution provides for socio-economic rights, such as the right to basic and further education,167 the right
In terms of policies, the influence of cescr is discernible from direct reference to cescr in the following policies: the National Health Insurance Bill;172 the 2003 White Paper on National Health Insurance Policy;173 the White Paper on Corrections in South Africa;174 and the National Strategic Plan on hiv, tb and stis 2017–2022. In addition to referencing cescr, the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance and the White Paper on the Rights of Persons with Disabilities also referred to General Comment 21175 and General Comment 3176 of the cescr Cttee.
5.3.2 Reliance by Judiciary
cescr has on several occasions been influential in the pronouncements of South African courts on socio-economic rights.
Notable among the cases is the case of Equal Education and Others v Minister of Basic Education and Others.177 The crux of the matter was the constitutionality of the suspension of the National Schools Nutrition Programme (nsnp) as a result of the closure of schools in South Africa in response to the covid-19 pandemic. The Department of Education had argued that the nsnp by its very nature was merely a supportive programme to achieve substantive equality and to protect and advance children disadvantaged by unfair discrimination in terms of section 9(2) of the Constitution.178 The North Gauteng High Court relied on the submissions of South Africa in its initial report to the cescr Cttee to interpret the nature and obligation of state departments with respect to the realisation of the right to basic nutrition. In reaching its decision that the state has a constitutional duty in terms of section 29(1)(a) of the Constitution to provide basic nutrition, the Court looked at the goals and the description of
In the case of Geneva Claasen and Others v The mec for Transport and Public Works Western Cape Province and Another,180 the Western Cape High Court applied cescr Cttee General Comment 7 and the report of the Special Rapporteur on adequate housing in giving an order compelling the mec for Transport and Public Works, Western Cape Provincial Department and the City of Cape Town, to provide suitable alternative accommodation for the applicants before effecting an eviction order. The Court specifically quoted the relevant paragraph of the Special Rapporteur’s report which emphasised the duty of the state to provide alternative housing for citizens who must be evicted from their residence due to unavoidable circumstances.
In the case of Lindiwe Mazibuko and Others v City of Johannesburg and Others,181 the Constitutional Court placed strong emphasis on the principle of progressive realisation under article 2(1) of cescr. In this case the issue in question was whether the City of Johannesburg had taken reasonable steps to provide the residence with enough water. In addressing this question, the Court relied on General Comment 3 of the cescr Cttee on progressive realisation and the concept of minimum core obligations under paragraphs 9 and 10.182 The Court found that the City of Johannesburg, by constantly reviewing its policies, had taken reasonable measures to realise the right to access water.183
The Court has also made reference to in respect of the right to adequate housing,184 the right to social security,185 the right to education,186 and the
At the international level, the South African judiciary has also influenced the General Comment188 and individual communication of the cescr Cttee.189
5.3.3 Impact on and through Independent State Institutions
The impact of cescr on and through independent state institutions has not gained much traction in South Africa. This may be due to the fact that cescr was not ratified by South Africa until 2015. However, the salrc referred to the principle of progressive realisation encapsulated in cescr in its Discussion Paper on Sexual Offences and Adult Prostitution.190
5.3.4 Impact on and through Non-state Actors
As is evident from the shadow reports submitted during the consideration of South Africa’s cescr initial report, cescr had a significant impact on the work of csos in South Africa.191
5.3.5 Impact of State Reporting
South Africa has submitted only one state report to the cescr Cttee. The report was submitted by the deadline. The prompt reporting on cescr may be ascribed to the momentum created by the coalitions between ngos and government departments during the activities that led to the ratification of cescr by South Africa.192 The report was prepared with inputs from a consultative workshop between the government, the sahrc and civil society organisations.193 In addition to the state report, South Africa provided supplementary information to the list of issues raised by the cescr Cttee. The South African delegate, led by the Deputy Minister of Justice, had a constructive dialogue with the cescr Cttee.194
Concerns expressed by the cescr Cttee in its cos to South Africa include the absence of the right to work and the right to an adequate standard of living from the South African Constitution; the introduction of austerity measures to relieve debt levels without defining the time frame within which such austerity measures should be re-examined or lifted; the poverty ratio in South Africa; and the need to expedite the adoption of the Social Assistance Amendment Bill of 2018 to address some of the economic inequalities in the country.
In terms of impact, the recommendation of the cescr Cttee on the adoption of the Social Assistance Amendment Bill and provision of access to social assistance for people between the ages of 18 and 59 was used as an advocacy tool during the public hearing on the Social Assistance Amendment Bill.196 Hoodah Fayker-Abrahams, Black Sash National Advocacy Manager, while addressing the Portfolio Committee, stated that ‘[o]ne of the four priority recommendations that the UN has requested a report on by October 2020, include the need to address the lack of social assistance for poor people between the ages of 18 and 59’.197 While acknowledging her support for the proposals to the amended Bill, she reiterated that the Portfolio Committee would have to work towards compliance with the cescr recommendations by the October 2020 deadline. On 22 October 2020 the Social Assistance Amendment Bill was passed by the National Council of Provinces and was sent to the President for assent.198 The amended Bill addressed some of the concerns of the cescr Cttee about the poverty ratio in South Africa and the need for improvement of social assistance by South Africa. The amended Bill provides for additional
5.3.6 Brief Conclusion
Even though there was a delayed ratification of cescr in South Africa, this treaty has played a significant role in South Africa, and in particular, through the judiciary. Two factors may be responsible for this. One factor is the status of socio-economic rights in the South African legal system. Based on the extensive protection of socio-economic rights in the Bill of Rights, judicial enforcement of socio-economic rights has resulted in the litigation of numerous domestic socio-economic rights cases. The second factor is derived from the first. The abundance of national litigation on socio-economic rights brings to the fore section 39(1)(b) of the South African Constitution, which requires courts to consider international law (including cescr) in interpreting the Bill of Rights.
5.4 Convention on the Elimination of All Forms of Discrimination against Women
5.4.1 Incorporation and Reliance by Organs of State
As cedaw was formally accepted during the democratisation process in South Africa, it has played and continues to play a vital role in the development of legislation and policies, and has contributed to significant institutional and domestic legal reform.
cedaw contributed to the women’s rights and equality rights contained in the South African Constitution. It functioned to resolve tensions between certain traditional leaders and customary laws, women’s rights organisations and civil society during the drafting process of the South African Constitution.199 The norms of cedaw such as equality,200 and women’s rights, including reproductive rights,201 are enshrined in the South African Bill of Rights.
cedaw has played an important role in domestic legal reform notably with regard to equality,202 the recognition of customary marriage,203 reproductive rights,204 trafficking205 and domestic violence.206
Under-resourcing, however, continues to be a challenge to the effective implementation of state obligations under cedaw.208
5.4.2 Reliance by Judiciary
The judiciary has played a prominent role by incorporating cedaw into South African jurisprudence. cedaw’s requirements have contributed to transformative landmark decisions including cases on inheritance and customary law,209 the recognition of Muslim marriages,210 and violence against women.211
5.4.3
cedaw has to a significant extent impacted on the work of the cge. The cge has facilitated workshops on cedaw,212 and has referred to cedaw in its annual reports.
cedaw has also influenced the research of the salrc.213 In the reports of the salrc on the harmonisation of common law and customary law,214 domestic violence,215 maintenance,216 hiv217 and sex work,218 it explicitly refers to cedaw and its conclusions and findings illustrate the impact of cedaw. The salrc did not refer to the cedaw Cttee cos to South Africa on the practice of ukuthwala in its Discussion Paper 132, ‘The Practice of Ukuthwala’, 2014. The salrc, however, referred to general recommendations of the cedaw Cttee and crc Cttee.219
5.4.4 Impact on and through Non-state Actors
cedaw is used by ngos that referred to the cedaw requirements in their reports and blogs.220 Increasingly, research, reports, blogs and workshop
cedaw is frequently discussed, applied to pertinent issues and referred to in law journals,225 academic research and
5.4.5 Impact of State Reporting
The initial report to the cedaw Cttee was submitted in 1998, almost a year late.228 The consolidated second, third and fourth reports were also submitted late: the second due in 2001, the third in 2005 and the fourth report was due on 14 January 2009. The consolidated report was submitted on 2 July 2009. The fifth periodic report was due on 1 February 2015 and submitted on 9 May 2019.
The content of the reports, particularly the initial report, has been of a high quality and the reports have largely followed the guidelines.229 However, the consolidated second, third and fourth report did not keep to the guideline length.230
The lead government department has differed between reports: The Department of Welfare led the initial report process; the Ministry for Women,
There are numerous shadow reports by civil society and ngos. These enrich the report and offer an alternative, in some cases contrary, view to the state report. ngo and civil society shadow reports are comprehensive,234 and deal with issues such as disabilities, domestic violence, gender equality and sexual orientation. Some reports are thematic, focusing on a particular issue, for example, disabilities.235 The cge also presented a report to South Africa’s consolidated second, third and fourth country report, commenting on South Africa’s implementation of cedaw during the period 1998 to 2008.236
The cedaw Cttee’s cos have focused on issues such as stereotypes and harmful practices (including ukuthwala);237 participation in political and public life;238 employment;239 health services;240 violence against women;241
In terms of impact, South Africa has not implemented most of the cedaw’s Cttee’s recommendations, in particular, regarding the implementation of the Women Empowerment and Gender Equality Bill (wege)249 and the establishment of a unified family code. Significantly, these recommendations were highlighted by the Committee as important and it requested South Africa to provide, by 2013, written information on the steps undertaken to implement these recommendations.250 South Africa not only responded late but it had not implemented the recommendations. South Africa held that the wege Bill had not been implemented as it would be redundant, due to other existing mechanisms and legislation that ‘are in place to protect women against discrimination, violence, including sexual violence and promote women empowerment and rights of women’.251 The lack of a unified marriage code, according to the fifth periodic report, is not desirable in South Africa as ‘a unified family code might result in achieving formal equality which, in many instances, discriminates against others indirectly. The aim of recognising diversity is to ensure substantive equality for all.’252 This reasoning indicates, to some extent, South Africa’s relationship with the cedaw Cttee, suggesting discord between some of the recommendations and the nuanced realities for women in South Africa.
However, to some extent the state reporting process has influenced resource allocation to prevent and address discrimination against women.253 Also,
5.4.6 Brief Conclusion
To some extent cedaw has had an impact on the rights of women in South Africa and de jure gender equality. It has played a substantial role since the transition to democracy, influencing not only the Constitution but also being relied on and incorporated by the legislature and the judiciary. Despite notable strides, legislation specifically addressing women’s empowerment has not been implemented, as recommended by the cedaw Cttee. Of concern is the lack of implementation of the recommendations of the cedaw Cttee. The strong presence of ngos and civil society in South Africa and their significant involvement in the reporting process are significant and ensure greater accountability.
5.5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5.5.1 Incorporation and Reliance by Legislature and Executive
The influence of cat on the South African Constitution is discernible from the reliance of stakeholders on cat.255
cat has also been impactful on national legislation. The Prevention and Combating of Torture of Persons Act 2013 (pctpa) in its Preamble conspicuously reaffirmed the commitment of South Africa to preventing and combating the torture of persons and seeks to ensure that no person is subjected to torture as required by cat.256 cat has also influenced the Draft Refugees Amendment Bill, 2015 (Act 130 of 1998). The draft Bill amended section 4 of the
In terms of government policies, the influence of cat is evident in the White Paper on the Rights of Persons with Disabilities. The White Paper strongly relied on cat in advocating that by recognising and reframing violence and abuse perpetrated against persons with disabilities as torture or other cruel, inhuman or degrading treatment or punishment, victims and advocates can be afforded stronger legal protection and redress for violations of human rights.258 The White Paper on Remand Detention Management in South Africa, which provides for the policies on orderly, safe and secure remand detention in South Africa, listed cat and op-cat among the several prescripts that form the basis for ensuring the good order, safety and security of remand detainees.259
The South African Police Services Policy on the Prevention of Torture and the Treatment of Persons in Custody states that the ratification and requirement of cat ‘necessitated a re-evaluation of the treatment of persons in custody of the South African Police Service, and the approach of the South African Police Service towards interrogation methods, detention, etc’.260
op-cat has influenced institutional reforms. Upon the ratification of op-cat, the government has designated a multiple-body national preventive mechanism (npm), to be coordinated by the sahrc. The South African npm will include institutions such as the jics, the Independent Police Investigative Directorate, the Military Ombud and the Health Ombud.261
5.5.2 Reliance by Judiciary
The case of Sonke Gender Justice npc v President of the Republic of South Africa and Others262 demonstrates the significant influence of op-cat on the South
In the case of Khosa, Mphephu & Others v Minister of Defence and Military Veterans and Others,263 the Gauteng North High Court placed extensive reliance on South Africa’s cat second periodic report and the cat Cttee cos to South Africa’s second report in reaching its conclusion that the country does not have sufficient torture complaint mechanisms to ensure a prompt and impartial investigation of complaints of torture against the South African Police Service and the South African National Defence Force. The Court ruled that the lack of proper investigation into the death of Khosa and the assaults on the applicants show that ‘the existing investigative bodies are either not competent or not committed to comply with article 12 of the Torture Convention’.264 The Court ordered the respondents in the case (Minister of Defence and Military Veterans, the Minister for Defence, the Chief of the South African National Defence Force, the Minister of Police, the National Commissioner of the South African Police Service and the Acting Chief of the Johannesburg Metropolitan Police Department) to ‘establish a freely accessible mechanism for civilians to report allegations of torture or cruel, inhuman or degrading treatment or punishment committed by members of the sandf, the saps or any mpd for the duration of state of disaster’.265
The courts have also utilised cat as interpretive guides in cases of non-refoulement,266 and prohibition of
5.5.3 Impact on and through Independent State Institutions
cat has impacted significantly on the work of the sahrc. The sahrc Section 5 Committee on Torture works on the compliance of South Africa with cat. Through its education, training and public awareness programme, the sahrc was involved in the ratification of op-cat, has co-hosted a roundtable discussion on op-cat and also made presentations to Parliament on op-cat.268 The sahrc also launched a media briefing in Cape Town on 17 July 2019 on the launch of the npm.269 The influence of cat on the work of the Truth and Reconciliation Commission is discernible from its final report.270 Surprisingly, cat has not had any significant impact in the work of the salrc.271
5.5.4 Impact on and through Non-state Actors
cat has featured prominently in the works of Article5 Initiative (A5I), a partnership between the University of Cape Town (Gender, Health and Justice Research Unit), the University of the Western Cape (Civil Society Prison Reform Initiative at the Dullah Omar Institute), the University of Bristol (Human Rights Implementation Centre) and the African Policing Civilian Oversight Forum. A51 is supported by the European Union (EU) through the European Instrument for the Development of Human Rights (eidhr).272 A5I hosted
The Centre for the Study of Violence and Reconciliation (csvr) has used cat in its advocacy works.276 The csvr relied on cat in advocating a civil case against the police ministry following the death of a taxi driver after he had been dragged by a police van. It stated that ‘the ill-treatment of Macia [the taxi driver] and the alleged subsequent beating in the police holding cells amounts to torture, cruel, inhuman and degrading treatment, under the definition of torture in article 1 of the UN Convention against Torture’.277 The CSVR also highlighted the CAT as one of the key international instruments for the protection of torture, in its analysis of the act and facts of torture in South Africa.278 As part of its advocacy campaign on addressing torture in South Africa, the CSVR has also developed a booklet on torture that deals with the obligations of South Africa under CAT and the role of civil society in the work of the CAT Cttee.279
The Detention Justice Forum (djf), composed of civil society organisations concerned with the rights of detainees, has also expresse concerns about op-cat.280
5.5.5
South Africa has submitted two cat state reports. The two reports were submitted after lengthy delays. The delay of the second cat report was occasioned by the democratic transitioning of South Africa and burgeoning international treaty and reporting obligations of the country.281 The second report was shared by the government with national human rights institutions and civil society organisations.282
The initial report of South Africa to the cat Cttee did not conform with the cat Cttee’s guidelines on preparation of initial reports. While the second report was an improvement on the initial report, it contains much general information and did not specifically address the issue of implementation of cos. South Africa’s second periodic report was presented by a high-level delegation led by the Deputy Minister of Justice. The sahrc submitted a report for the consideration of the second to third periodic report. Three and five shadow reports, respectively, were submitted to the initial and second periodic report of South Africa.283
In terms of impact of the cos, apart from the general measures that at best can be linked with cat, the cos of the cat Cttee have not had any significant impact in South Africa. These recommendations have had an insignificant impact, as seen by South Africa’s response to the list of issues raised by the CAT Cttee. South Africa responded to each of the issues, except for the requested information on the implementation of COs from its initial report. South Africa has not engaged with the follow-up procedure of the cat Cttee. On 25 April 2008 the Rapporteur for follow-up on cos of the cat Cttee wrote a reminder letter to the Permanent Mission of South Africa in Geneva, requesting follow-up information on select recommendations in South Africa’s initial report.284
The key recommendations that were selected by the cat Cttee in South Africa’s initial report for follow-up include information on the extradition of Rashid and Mohamed (non-refoulement), torture of non-citizens detained in
5.5.6 Brief Conclusion
The ratification of op-cat has signalled the country’s commitment to the prohibition of torture and other forms of degrading treatment in South Africa. It also kick-started a process of institutional reform. It is anticipated that the institutional reforms occasioned by the ratification of op-cat will improve the influence of cat and op-cat in South Africa.
5.6
5.6.1 Incorporation and Reliance by Organs of State
crc was influential in the elaborate provisions on children’s rights in section 28 of the South African Constitution.289 crc was extensively relied on in the proposals and suggestions made by stakeholders to the Technical Committee during the drafting of the interim Constitution.290 In the drafting of the Constitution of the Republic of South Africa, 1996, various submissions made by children’s rights stakeholders to Theme Committee 4 (the theme committee responsible for the Bill of Rights in the final Constitution) were influenced by crc.291
crc has had a significant impact on children-related laws in South Africa. The 1996 Amendment to the Child Care Act shifted the focus of the Act from ‘unable’ or ‘unfit’ parents to ‘the child in need of care’, in accordance with the provisions of crc.292 The Children’s Act 38 of 2005 (as amended) aligns the age of a child with that stipulated in crc. The Act provides a comprehensive framework for the protection of children from all forms of abuse, neglect and exploitation, in response to South Africa’s obligations under op-crc-sc.293 The Child Justice Act introduced changes that harmonise the law more closely with article 40 of crc. The Act increased the minimum age of criminal capacity from 7 to 10 years, and established a rebuttable presumption of criminal incapacity in the case of children between 10 and 14 years of age.294 The Defence Act (2002) aligned the law with the provisions of op-crc-ac. The Act changed the minimum age for recruitment into the national defence force from 17 to 18 years.295 The Maintenance Act, the Domestic Violence Act, the Children’s Act (2005), the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 all made express references to the need for South Africa to fulfill its obligations under crc.
crc has had a significant influence on government policies, particularly as it relates to children and women. The influence of crc is quite noticeable, mostly on the National Plan of Action for Children (npac) (2012–2017). The policy, in its introduction, stated that ‘[i]n view of South Africa having ratified
The influence of crc is evident in the following policies through the specific reference to South Africa’s legal obligations under the crc in the following documents: the training manual on enforcing the law on child labour in South Africa;300 the 1996 National Programme of Action;301 the National Drug Master Plan 1999;302 the national integrated early childhood development policy;303 the National Policy Framework for Orphans and Other Children Made Vulnerable by hiv and aids;304 the National School Health Policy and Implementation Guidelines;305 the Infant and Young Child Feeding Policy;306 the amended
Despite its significant contributions to government policies, crc has not led to visible institutional reforms. In its response to the crc Cttee’s requirement for the establishment of a separate budget for children, South Africa responded that there is no mechanism within the setup of the cabinet to assess government spending on children because government departments do not generally regard children as a separate homogenous group.315 However, there have been efforts to train the police on the provisions of crc as it relates to the right to privacy of children, and the UN juvenile justice documents have been simplified and contextualised in South Africa.316
5.6.2
Generally, the provisions of crc, the crc Cttee’s General Comments and the crc Cttee’s cos have played crucial roles in the arguments of counsel and decisions of the judiciary in South Africa.
In the case of yg v The State,317 the appellant was convicted of assault on his son. The appellant contested the conviction on the ground that the actions deemed assault were nothing more than an exercise of his right as a parent to chastise his son by meting out reasonable corporal punishment for his son’s indiscipline. The South Gauteng High Court in its judgment stated that ‘[a]s recently as October 2016, the Committee [crc Cttee] had cause to comment on South Africa’s second report on the implementation of its obligations under the crc. The Committee made the following pertinent remarks: It was “concerned that corporal punishment in the home has not been prohibited and is widely practiced”.’ With reference to the Committee’s General Comment 8, it recommended that South Africa ‘expedite the adoption of legislation to prohibit all forms of corporal punishment in the home, including “reasonable chastisement”’.318 The Court ruled as follows:319
For all of these reasons, I find that the limitations imposed by the reasonable chastisement defence are not constitutionally justifiable under section 36. It is time for our country to march in step with its international obligations under the crc by recognising that the reasonable chastisement defense is no longer legally acceptable under our constitutional dispensation.
Other cases in which crc has been influential are Minister for Welfare and Population Development v Fitzpatrick and Others;322 ad and Another v dw and Others;323 J v ndpp and Another;324 Centre for Child Law v Minister for Justice and Constitutional Development and Others;325 tmc v tc;326 Ester Nel v Valerie Deodot Byliefeldt and Another;327 km v jw;328 and Helen Margaret Ford v Michael George William Ford.329
5.6.3 Impact on and through Independent State Institutions
crc has been highly influential on the work of the salrc. crc, op-crc-sc and the cos of the crc Cttee under the op-crc-sc were highly influential in the work of the salrc on sexual offences, pornography and children. The discussion paper on salrc’s Project 107C (Sexual Offences (Pornography and Children)) that was considered by the salrc on 16 March 2019 includes recommendations aimed at ensuring compliance with South Africa’s obligations in terms of international instruments such as the op-crc-sc.330 Seven
crc also played a crucial role in the work of the salrc on the Child Care Act.332 The salrc relied on South Africa’s obligations under crc to broadly interpret its mandate to investigate and review the Child Care Act, 1983 and to make recommendations to the Minister for Social Development for reform to include the reform of all statutory, common, customary and religious law affecting children.333 The salrc used crc in its work on the review of juvenile justice in South Africa.334 The salrc also relied on crc in its work on harmonisation of the common law and the indigenous law;335 customary marriages;336 maternity and paternity benefits for self-employed workers;337 the
op-crc-ac has had an impact in South Africa through the work of the sahrc. The sahrc has engaged in follow-up to ensure the compliance of South Africa with the requirements of op-crc-ac. The engagement of the sahrc with the Department of Foreign Affairs and the South African national defence force (sandf) led to an agreement to raise the age of recruits to the army to 18 years. The efforts of the sahrc resulted in the compliance of South Africa with the op-crc-ac, thereby removing the barrier to South Africa’s ratification of op-crc-ac.342
The sahrc also published an article on the 25th anniversary of crc. The article detailed the historical significance of children’s rights issues in South Africa and the regression in the protection of children’s rights in South Africa due to bureaucratic issues in government departments.343
5.6.4 Impact on and through Non-state Actors
crc has gained traction in South Africa’s judiciary through the work of the Centre for Child Law (ccl), an impact litigation organisation situated in the Faculty of Law, University of Pretoria. The ccl has deployed crc and the cos of the crc Cttee to South Africa in its litigation on numerous children rights cases before South African courts.344 The influence of crc can also be seen in the work of organisations such as the Children’s Institute, University of Cape
5.6.5 Impact of State Reporting
The initial report of South Africa under crc was submitted within four months of the due date for submission. However, the second periodic report was submitted after a delay of 12 years. The delay in submission may be connected with the shuffling of the lead department on children’s rights. When the Department of Women, Children and Persons with Disabilities was established in 2009 it was discovered that the 2002 and 2007 UN reports, although prepared, had never been submitted to the UN, and South Africa had also never submitted any reports to the au.346 The country submitted a combined second to fourth periodic report and the report also served as the initial report for the optional protocol on the involvement of children in armed conflict. The consolidated second to fourth periodic report was prepared with technical support from unicef and there was input from the provinces and civil society.347
In terms of structure and content, the initial report to the crc Cttee was quite comprehensive on general information but did not provide much specific information on the implementation of the provisions of crc. The dialogue of the Committee with the representatives of South Africa also reflected the enthusiasm of the representatives in discussing children’s rights in general, as opposed to focusing on the implementation of the rights contained in the Convention. The initial report was presented by a high-ranking delegation and the crc Cttee acknowledged in its cos that the presence of a high-ranking delegation allowed for a fuller assessment of the situation of children in South Africa. The structure of the combined second to fourth periodic report followed the general guidelines of the crc Cttee. The delegation that presented the combined second to fourth periodic report was led by the Deputy Minister of the Department of Social Development (dsd).
csos did not submit shadow reports during the consideration of the initial reports of South Africa but they participated in the preparation of the state report.348 The sahrc submitted a report for the consideration of the second
In terms of publicity, the dwcpd published copies of the initial state report and cos and, with the support of civil society, has distributed it among governmental departments and ngos. It has further conducted consultations on, and raised awareness of, crc with national, provincial and local-level stakeholders in rural as well as urban areas.350 South Africa’s second periodic report to crc was also reported on the website of the Department of Basic Education.351
In terms of impact of the cos, there are some instances of influence of the crc Cttee’s cos. During the drafting of the Child Justice Act 75 of 2008, the crc Cttee had recommended that South Africa should reassess the draft legislation on criminal responsibility with a view to increasing the proposed legal minimum age of ten years.352 However, section 7 of the Child Justice Act set the minimum age of criminal capacity at 10 years. Section 8 of the Act, however, provided for the review of the minimum age of criminal capacity by the responsible cabinet minister within five years of the commencement of the Act. In the presentation of its review before the Portfolio Committee on Justice and Correctional Services, the doj & cd referred to articles 3(1) and 40(3) of crc and crc Cttee General Comment 10: Children’s Rights in Juvenile Justice.353 The Child Justice Amendment Bill354 now sets the minimum age of criminal capacity at 12 years.355 The amendment has been described as an alignment of South Africa’s criminal justice law with ‘recommendations from
South Africa also reported that the provisions in the Children’s Act include outlawing and/or regulating harmful customary practices, such as virginity testing and male circumcision, among children younger than 16 years were a response to the crc Cttee’s concerns about harmful practices for children.357 In the second periodic report of South Africa it was reported that the increase in the legal minimum age for sexual consent in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was a response to the recommendation of crc.358
5.6.6 Brief Conclusion
crc is highly influential in the work of state and non-state actors in South Africa. The high level of impact of crc is connected to the importance attached to children’s rights in the early post-apartheid South Africa and the crucial role of crc in the drafting of the Constitution.359 The high impact of crc in South Africa has also been aided by technical and financial support received from UN specialised agencies such as unicef, unaids, unfpa and undp.360 The
The impact of crc in South Africa has been impeded by cultural and religious beliefs. Some of the normative standards in the treaties appear to be in conflict with long-established cultural and religious beliefs such as virginity testing and abortion. In one of the dialogues with the crc Cttee, a member of the South African delegation, Pahad, explained to the Committee that the termination of pregnancies has been met with stiff opposition by religious groups.361 Male circumcision was also described as a cultural practice guaranteed by the Constitution by South African representatives during the consideration of South Africa’s crc initial report. Also, with respect to corporal punishment, the efforts of the Department of Basic Education to reduce corporal punishment in schools have been hampered by parents who considered corporal punishment an appropriate way of training children.362 There is also evidence of tension between government policies and international law. When the crc Cttee asked the state officials about the possibility of a specific budget for children, the official answered that he doubted if the Minister of Finance would subscribe to the idea of a separate or specific budget for children.363
5.7 Convention on the Rights of Persons with Disabilities
5.7.1 Incorporation and Reliance by Organs of State
crpd has had some influence on laws and policies in South Africa. During the review of the Electronic Communications Amendment Bill, a definition was inserted for ‘persons with disabilities’, to align it with the White Paper definition that is based on crpd.364 Also, the Women Empowerment and Gender Equality Bill identifies its objective to include facilitating South Africa’s compliance with its commitments to international agreements, including crpd.365 The biggest influence of crpd on government policies may be gleaned from
The influence of crpd is discernible through express reference in the South African Policy on Disability, developed by the Department for Social Development;367 the White Paper on Sport and Recreation;368 the National Development Plan: Vision 2030;369 the Strategic Policy Framework on Disability for the Post School Education and Training System;370 the National Strategic Plan for hiv and aids, stis and tb, 2012–2016;371 the South African Integrated Programme of Action Addressing Violence Against Women and Children (2013–2018).
Currently there is no specific legislation that has comprehensively domesticated crpd. However, it is envisaged that the 2015 White Paper on the Rights of Persons with Disabilities will be developed into legislation to complete the domestication of crpd.372 There is no express mention of budgetary allocation for disability mainstreaming. This may be due to the state department responsible for disability mainstreaming being situated within the Department of Women, Children and Persons with Disabilities (dwcpd). During the press briefings by the minister in charge of the department, the issue of limited budgets within the department has always come up. The department has cited challenges, including with respect to enhancing disability mainstreaming pursuant to crpd in the country due to a limited budget.373
5.7.2
crpd has not featured prominently in the jurisprudence of South African courts. The Convention has only been used as an interpretive guide in five instances by South African courts.
The Constitutional Court in the case of Anna-Marie de Vos no and Others v Minister of Justice and Constitutional Development and Others374 relied on the provisions of crpd in holding that the provisions of section 77(6)(a)(i) of the Criminal Procedure Act 51 of 1977 were unconstitutional to the extent that it provided for the compulsory detention of persons found guilty of criminal offences, regardless of their various status, including mental disabilities. Similarly, the Court in Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development375 referred to crpd as one of the instruments that provide for the rights of children, particularly on the principle of the best interests of the child.
The Western Cape High Court in the case of Murray John Martyn Bridgman no v Witzenberg Municipality376 referred to crpd in determining whether the parents of the plaintiff in the case were partly liable for the rape of their daughter on the respondent’s premises. In particular, the Court referred to the rights against discrimination on the basis of disability, equality before the law, as well as the right to live independently, pursuant to articles 1, 8, 12 and 19 respectively.377 The Western Cape High Court also referred to crpd in the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Government of the Province of the Western Cape.378
5.7.3 Impact on and through Independent State Institutions
The sahrc has conducted several trainings and workshops on the principles furthered by crpd. The training and workshops have been focused on particular articles of crpd, among them articles 19, 24 and 27. The sahrc has also developed a framework, guidelines and toolkits to guide state and non-state entities on implementing the provisions of crpd. These include the 2017 sahrc Disability Monitoring Framework and guidelines (2017); ‘Promoting the Right
crpd significantly impacted on the work of the salrc on an assisted decision-making Bill. In its annual report the salrc stated that the finalisation of the salrc’s draft report and draft Bill on Assisted Decision Making was interrupted by a request from the sahrc in September 2009 that the report and draft Bill should take crpd into account.381 On the advice of the Department of International Relations and Cooperation (dirco), the salrc in January 2010 embarked on further research to establish a draft interpretation of the articles of crpd that are relevant to the salrc’s draft proposals on assisted decision making. The salrc completed the review and amendment of the proposed draft Bill on Assisted Decision Making for compatibility with crpd in draft form in December 2010. An information and consultation session aimed at government stakeholders, the disability sector and public interest lawyers on the compatibility of the draft Bill with crpd was held on 16 February 2012.382 In line with the terminology of crpd, the salrc’s final recommendations and proposed draft Bill were changed to ‘supported decision making’ as opposed to ‘assisted decision making’.383 Because of the significant impact of crpd on the Commission’s recommendations, the Commission in its final report dedicated a chapter on the relevance of crpd to its research on assisted decision making for persons with disabilities.384
Additionally, in May 2018 the salrc received a request from doj & cd for investigation into the necessity for legislation for the domestication of crpd. The object of this investigation was to ascertain the necessity of a single or
Traces of crpd are also evident in the work of the Commission for Employment Equity (cee). The Commission for Employment Equity, in setting out their key strategic objectives from 2010, highlighted that it would be advising the Minister of Labour on policy matters which include, but not limited to the review of the Code of Good Practice on People with Disabilities and Employment and its Technical Assistance Guidelines to bring it in line with any new developments, including crpd.386
5.7.4 Impact on and through Non-state Actors
crpd has reflected in the work of the Centre for Human Rights, which has issued a publication on its website explaining the state reporting process of crpd, the key summary of the recommendations of the crpd Cttee to South Africa and urged the government of South Africa to implement the cos.387 The influence of crpd is also reflected in the works of Cape Mental Health and Epilepsy South Africa. These organisations also participated in the shadow reports that were submitted to the crpd Cttee in 2018.
crpd has also been influential in academic publications. The annual African Disability Rights Yearbook, which is published by the Pretoria University Law Press, contains articles touching on the impact of crpd in South Africa. The publications identified discuss topics such as the rights of South African women with disabilities;388 criminal capacity and psychosocial disability in South African law;389 access to justice;390 and a country report for South Africa
5.7.5 Impact of State Reporting
South Africa presented its initial report to crpd on 26 November 2014, seven years after ratifying the treaty. The country report covered the period between May 2008 and March 2012. Pursuant to the initial report, the delay in submitting the report was occasioned by changes in departmental arrangements resulting from the transition from the Office on the Status of Disabled Persons in the Presidency to the Department of Women, Children and Persons with Disabilities, which impacted negatively on government’s capacity in the short term to finalise and deposit the first country report.
The preparation of the report involved various government departments and persons with disabilities organisations.393 The first draft of the report was also published on the government website for public comments in November 2012, and released to multiple stakeholders by electronic means.394
The sahrc submitted a shadow report and eight other shadow reports were submitted, including a joint submission from nine ngos. The South African delegation was led by the Minister of Social Development.
In terms of impact, the state reporting process of crpd has been used as a medium for dialogue on the development of policies. The comments and submissions received on the 2013 draft baseline country report to crpd were some of the mediums of consultations with relevant stakeholders to develop the White Paper on the Rights of Persons with Disabilities.395 In response to the crpd Cttee’s recommendation that South Africa should expedite the designation of an independent monitoring mechanism (imm) under article 33 of
5.7.6 Impact of Individual Communications
Although South Africa was one of the first states to ratify op-crpd in 2007, only one complaint has thus far been submitted, and was declared inadmissible.397
5.7.7 Brief Conclusion
South Africa has acknowledged that the impact of crpd has been impeded partly due to the lack of an effective monitoring and evaluation system to track implementation of crpd in the country.398 It is anticipated that the influence of crpd will improve once the process of establishing the imm under article 33 of crpd has been completed.
The impact of crpd has also been impeded by the absence of a special government agency or department working to mainstream disability rights and enhance the implementation of crpd. Currently, the responsible department is that of Women, Children and Persons with Disabilities. This department has often raised the issue and challenges of a limited budget. It is also evident, from the press briefings at Parliament, that the department has placed more focus on the rights of children and women. The Department of Social Development Policy on Disability inexplicably listed crc as one of the ‘national and international disability instruments’ but omitted crpd.
The impact of the treaty also is only feasible at national level. The South African Local Government Association and the former Department of Provincial and Local Government released the Disability Framework for Local Government 2009–2014, aimed at enabling local government and other role players to mainstream disability considerations in the development programmes of municipalities. The framework, despite being released after the ratification of crpd, does not expressly refer to crpd. The implementation of the framework has also regrettably lagged behind.
The level of awareness of crpd among government officials seems to be relatively low. There are a number of important disability rights documents
6 Conclusion
Trends: In comparison to the 1999 study, there is a general increase in the level of impact of the treaties on legislation, policies and judicial decisions. However, in terms of the level of influence among the treaties, the findings of the current study are similar to the 1999 study. As stated above, crc and cedaw remain the treaties with the highest level of influence among the seven treaties ratified by South Africa. As compared to the pre-2000 consideration of state reports, the post-2000 reports witnessed an increase in submission of shadow reports to the treaty bodies, especially by national ngos. The national ngos have also shown more awareness of the treaties and have played crucial roles both directly and indirectly in improving the impact of the treaties in South Africa. The sahrc has also been more involved in the state reporting process and has submitted several shadow reports to the treaty bodies. The csos that were involved in the early stages of the state reporting process did not understand the cyclical nature of the reporting process and, thus, they did not actively follow up on the cos. However, the trends have improved and the current set of csos involved in the reporting process are mobilising around the cos and use the cos at the national level. This is exemplified in the ingenious deployment of the cos in strategic litigation by the Centre for Child Law and the reference to the cos by the cescr Cttee by Black Sash. The current set of treaty body members has also significantly contributed to the increase in the visibility of their respective treaties as opposed to the findings in the previous studies where the appointment of treaty members has not had much impact
General findings of the study: The research found that the UN human rights treaties have had a considerable influence on laws, policies and decisions in South Africa. The influence on laws, policies and decisions varies among the treaties, with crc, cedaw, crpd and cat having the highest level and most discernible form of influence. The high level of influence of crc may be attributed to the presence of strong cso coalitions and the inputs of UN specialised agencies such as unicef and unesco, and the historical relevance of crc in South Africa.
Generally, the treaties and cos have generally had their most significant impact through the deployment of the treaties by csos and independent state human rights institutions. The desire of the country to maintain a good human rights reputation within the international community has also in some instances motivated the state to comply with its obligations under the UN human rights treaties.
Several factors have impeded the impact of the UN human rights treaties in South Africa. One of these factors is the disparity between national principles and international law. This factor may be deduced from the conversations of the state delegates with the treaty bodies. For instance, in its response to the cerd Cttee’s request for disaggregated data based on ethnic origin, South Africa responded as follows: ‘South Africa’s vision is that of a united people, united in our diversity, and not divided along ethnic and tribal groups. We are thus not in a position to provide disaggregated statistical data regarding ethnic groups.’ This factor was also observed in the Equality Report of the sahrc. In the initial report of South Africa to the crc Cttee, the government explained that there is no mechanism within the setup of the cabinet to assess government spending on children because government departments do not generally regard children as a separate homogenous group.399 When the crc Cttee asked the state officials about the possibility of a specific budget for children, the official answered that he doubted if the Minister of Finance would
Another factor that has impeded the impact of the UN treaties in South Africa are bureaucratic and capacity issues. For example, the long delay in the ratification of cescr was a result of bureaucratic issues with respect to the lead department that is expected to take the lead process in the ratification of the treaty. Bureaucratic and capacity issues are also reflected in the lack of coordination and cooperation among government departments.403 The lack of cooperation by other departments is the reason why the op-crc-ac report was, as at 30 June 2019, yet to be submitted because the dwcpd was unable to receive information from the Department of Defence despite several requests. According to some of the interviewees, some departments are generally more receptive to the human rights system, while some are extremely resistant. The lack of coordination has also been exacerbated by the problem of inadequate data collection systems.404 The lack of coordination and cooperation among different departments has also made it difficult to adequately assess the impact of the cos in South Africa. Apart from the crc second report, there is insufficient qualitative and quantitative data on measures undertaken by
Committee on the Elimination of Racial Discrimination, 2005, cerd/c/461/Add.3; South African History Online, ‘Mapungubwe’ (2019) <
Committee on the Elimination of Racial Discrimination (n 1).
For the first time political equality was guaranteed for all South Africans in the interim Constitution.
The Judicial Service Commission was established by s 178 and its powers are set out in s 178(5) of the Constitution of South Africa.
S v Makwanyane 1995 (6) bclr 665 (cc). Justice Mahomed held that ‘[i]n its obvious and awesome finality, [the death penalty] makes every other right, so vigorously and eloquently guaranteed by … the Constitution, permanently impossible to enjoy’ (para 269).
See eg S v Mazibuko 1988 (87) zasca 25.
Port Elizabeth Municipality v Various Occupiers 2005 (1) sa 217 (cc); S v BlueMoonlight 2012 (2) bclr 150 (cc).
United Nations Human Rights Council, 2020, Membership of the Human Rights Council <
Rights addressed in the Universal Periodic Reviews include equality and non-discrimination; right to life, liberty and security of the person; administration of justice, impunity, and the rule of law; freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life; right to work and to just and favourable conditions of work; right to social security and to an adequate standard of living; right to health; right to education; rights of persons with disabilities; and rights of migrants, refugees and asylum-seekers; a/hrc/wg.6/13/zaf/3; a/hrc/wg.6/27/zaf/3.
United Nations Human Rights of the High Commissioner, ‘View Country Visits of Special Procedures of the Human Rights Council since 1998’ <
icc, Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, icc-02/05–01/09, para 17.
icc (n 12) para 133.
Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) 2017 (1) sacr 623 (gp).
oau Convention on the Specific Aspects of Refugee Problems in Africa, ratified 15 December 1995.
African Charter on the Rights and Welfare of the Child, 1990; ratified 7 January 2000.
South Africa has not deposited the art 34(6) declaration in cases involving individuals and non-governmental organisations.
African Court on Human and Peoples’ Rights ‘Jurisdiction’ (2021) <
D Tladi, ‘Interpretation and international law in South African courts: The Supreme Court of Appeal and the Al Bashir saga’ (2016) 16 African Human Rights Law Journal 310–338, <
International treaties must be signed and ratified by the President of the Republic of South Africa.
S 231 1996 Constitution. Only one international treaty with an impact on human rights, the Hague Convention on the Civil Aspects of International Child Abduction, has in fact been incorporated into national law.
S 231(4) Constitution of the Republic of South Africa, 1996.
S 39(1)(b) Constitution of the Republic of South Africa, 1996.
S 233 Constitution of the Republic of South Africa, 1996.
S 39(2) Constitution of the Republic of South Africa, 1996.
J van Dyk, ‘Rough Welcome: Could South Africa’s New Border Detention Centres Turn Deadly?’ (2017) <
Human Rights Watch, ‘‘‘Prohibited Persons” : Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa’ 1 March 1998, 1-56432-181-9 <
a/hrc/17/33/Add.4 ‘Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, Addendum, Mission to South Africa’.
Médecins sans Frontières and others and The Department of Home Affairs and others (sahrc) Baseline Investigations Report (gp/2012/0134).
CH Heyns and F Viljoen, The Impact of the UN Human Rights Treaties on the Domestic Level (2002) 544.
Mail & Guardian, ‘Twenty-Five Years of Children’s Rights’<
Heyns and Viljoen (n 29) 546.
White Paper on the Rights of Persons with Disabilities, 33 <
Heyns and Viljoen (n 29) 546.
<
Report of the Portfolio Committee on Justice and Correctional Services on op-cat. In his response to a parliamentary question, the Deputy Minister of Justice explained that the ratification had taken long because government had to wait for the Preventive and Combating of Torture of Persons Act 13 of 2013 to be passed <
Parliamentary Monitoring Group ‘Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Briefing, with Deputy Minister’ <
Written reply to National Assembly Parliamentary Question 3042, submitted on 9 November 2018<
Report of the 32nd session of the African Committee of Experts on the Rights and Welfare of the Child, 12–20 November 2018 22.
Initial report, ccpr, South Africa 2.
State of the Nation Address by President Jacob Zuma 17 June 2014 <
<
South African Government News Agency, ‘sa Advocating for Economic, Social, Cultural Rights’ <
<
Parliamentary Monitoring Group ‘Country Reports (2nd, 3rd and 4th for 1998–2012) on UN Convention & African Charter on Rights of the child’ <
See eg cedaw Cttee, cos on the Combined Second, Third and Fourth Periodic Report of South Africa para 13.
Centre for the Study of Violence and Reconciliation People Opposing Women Abuse Western Cape Network on Violence Against Women, (2011) ngo Shadow Report 19.
Initial Report, crpd, South Africa, para 57.
See eg South African Human Rights Commission, ‘SAHRC Welcomes Ratification of UN Torture Agreement’ <
For example, at Rhodes University, International Human Rights Law optional course for final year Bachelor of Laws students and is taught in conjunction with International Humanitarian Law. Students are taught about ‘Implementation of human rights law: Charter-based and treaty-based mechanisms and implementation: The African human rights system’ (Rhodes University, Faculty of Law Course Outline for International Human Rights/Humanitarian Law (2020)).
Centre for Human Rights: ‘Advanced Human Rights Courses (ahrc)’ <
Centre for Human Rights: ‘Academic Programme’ <
<
The research project is co-directed by Professor Sandra Liebenberg, a member of the Committee on Economic and Socio-Cultural Rights, and Professor Geo Quinot.
<
M Forst, ‘World Report on the Situation of Human Rights Defenders’ (2018) United National Special Rapporteur on the Situation of Human Rights Defenders 146.
See, generally, Forst (n 55). The cescr Cttee in its cos to South Africa expressed its concerns over the harassment of human rights defenders in the mining and environmental sectors. The cescr Cttee recommended that South Africa should review the Regulation of Gatherings Act of 1993 and ensure a safe and favourable environment for human rights defenders. cescr Cttee cos e/c.12/zaf/co/1, para 13. The HRCttee also expressed concerns about the safety of human rights defenders working on ‘corporate accountability, land rights and transparency issues, as well as lesbian, gay, bisexual, transgender and intersex persons and hiv activists’. See ccpr/c/zaf/co/1, para 40.
Forst (n 55) 148.
ibid 149.
In November 2017, Sibonelo Patrick Mpeku, a member of Abahlali baseMjondolo, a grassroots organisation that advocates the rights of shack dwellers, was stabbed to death; his fellow member Soyiso Nkqayini was also killed a month later. In April 2011 Noxolo Nogwaza, a woman human rights defender, was subject to sexual orientation-based violence and was raped and murdered; in 2016 Mr Sikhosiphi Rhadebe, the chairperson of Amadiba Crisis Committee (acc) who was at the forefront of a campaign opposing open-cast mining of titanium in the Xolobeni area, was shot dead.
Common Core Document Forming Part of State Report, South Africa para 147.
ibid para 149.
One of the treaty body members interviewed was directly approached by the dirco because of expertise and significant contributions in the field of human rights. Another treaty body member was referred to the Department of Justice for nomination by a UN agency. According to the interviewees, the dirco took active steps to ensure the success of their nomination.
<
Her election, however, was reported by the NGO Studies in Poverty and Inequality Institute. See <
Interview with Prof. Sandra Liebenberg, Member, cescr Cttee. Skype interview conducted in Pretoria on 6 September 2019. Among other things, she has been involved in several workshops and consultations with the Department of International Relations and Cooperation (dirco), the Department of Justice and Constitutional Development and other South African government officials about the procedures of the cescr Cttee. She has also been involved in guiding ngos in the submission of shadow reports before the cescr Cttee. All interview notes on file with the author.
Interview with Prof. Ann Skelton, Member, crc Cttee. Physical interview conducted at the University of Pretoria, South Africa on 8 January 2020. On 10 December 2019, Prof. Skelton, alongside Prof. Heyns, a member of the HRCttee, was invited by the South African government to deliver a seminar on the treaty system to government officials. In contrast, Ms Esther Margeret Queen Mokhuane, who served on the crc Cttee from 27 February 1997 to 28 February 2001, was criticised by ngos as inactive. See Heyns and Viljoen (n 29) 564.
Most notably, in 1999 Christof Heyns and Frans Viljoen coordinated a study on the domestic impact of the UN treaty system on 20 countries, including South Africa. The study to date is the most comprehensive study of the UN treaty system (see Heyns and Viljoen (n 29)).
ohchr, ‘Committee on the Elimination of Discrimination Against Women’ Membership (2020) <
This form of impact was mostly found in constitutional debates.
See pt 5 for a detailed discussion on specific treaties.
See pt 5 for a detailed discussion on reliance by the judiciary.
cescr Cttee General Comment 24: State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, para 4. The cescr Cttee also referred to the decision of the Constitutional Court in the case of Daniels v Scribante and Others Case cct 50/16, judgment of 11 May 2017, paras 37–39.
1996 (4) bclr 537 (cc).
Para 82.
The sahrc generally interprets its mandate to include how South Africa gives effect to its obligations in terms of international treaties. See sahrc Annual Report 2006/2007 1. The sahrc has a Committee on Policy and International Coordination that deals with international treaty reports. The Policy and International Co-ordination Committee of the sahrc attended a four-day training course on UN Treaty Report Writing in Pretoria, 20–23 September 1999. See sahrc 4th Annual Report 1998/1999 73. The sahrc has a sub-programme called International Treaty Body Monitoring. The sub-programme monitors the government’s follow-up of recommendations from treaty bodies and contributes towards general awareness raising of South Africa’s international and regional human rights obligations. See sahrc Annual Report 2010 48.
The inspecting judge of the jics reported that he represented jics on the National Preventive Mechanism (npm) as required by op-cat. See Judicial Inspectorate for Correctional Services Annual Reports 2018/2019 10.
South African Government News Agency, ‘sa Advocating for Economic, Social, Cultural Rights’ 21 September 2015 <
HRCttee, McCallum v South Africa (2 November 2010); HRCttee, Gareth Anver Prince v South Africa (14 November 2007; no violation found) and cprd Cttee, anp v South Africa, crpd/c/23/d/73/2019 (submitted 19 September 2017; declared inadmissible 28 August 2020).
HRCttee, McCallum v South Africa ccpr/c/100/d/1818/2008 (25 October 2010).
The use of individual complaints in South Africa is also the same at the regional level. South Africa has had four individual cases and was not found to be in violation. South Africa is also yet to accept the direct individual access competence of the African Court. A government official stated that the treaty body members do not understand the peculiarities of South African society and cannot do better than the Constitutional Court justices. (Interview with anonymous government official. Physical interview conducted at the University of Pretoria on 29 July 2019).
The decision was used by the sahrc to advocate the criminalisation of torture and ratification of op-cat.
Parliamentary Monitoring Group, ‘Minister on National Council for Correctional Services Appointments; Correctional Services Contingent Liability and Legal Services Capacity; popi Act appointments’ <
Heyns and Viljoen (n 29) 553.
Promotion of Equality and Prevention of Unfair Discrimination Act, Preamble. Section 2(h) of the pepuda also states that the objects of the Act include to ‘facilitate further compliance with international law obligations including treaty obligations in terms of, amongst others, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women’.
Prevention and Combating of Hate Crimes and Hate Speech Bill B9 – 2018, Preamble para 3. The influence of cerd on the Bill was also acknowledged by the doj & cd in its Annual Report 2009/2010 145, 146.
Explanatory Memorandum to the Employment Equity Act 9.
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance 7, 37.
[2019] 1 All sa 358 (gp).
See para 79. The Court also made extensive reference to the decision of the HRCttee in the case of Angela Poma poma v Peru and the cescr Cttee General Comment 21.
2019 (10) bclr 1245 (EqC).
Nelson Mandela Foundation Trust and Another v Afriforum npc, 2019 (10) bclr 1245 (EqC) paras 150 & 151 .
Nelson Mandela Foundation Trust and Another v Afriforum npc, 2019 (10) bclr 1245 (EqC) para 177.
[2017] zalcct 26. See also Solidarity v Minister of Labour and Others [2020] 1 bllr 79 (lc) and Director General, Department of Labour v Win-Cool Industrial Enterprise (Pty) Ltd [2007] 9 bllr 845 (lc).
Gauteng Provincial Legislature in re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995 1996 (4) bclr 537 (cc); Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (1) bclr 1 (cc); Law Society of South Africa and Others v Minister for Transport and Another 2011 (2) bclr 150 (cc); Jacques Charl Hoffmann v South African Airways 2000 (11) bclr 1211 (cc); Annette Brink v Andre Kitshoff no 1996 (6) bclr 752 (cc) para 38.
Isimangaliso Wetland Park and Another v Sodwana Bay Guest Lodge and Another (01/2017) [2018] zakzdhc 60.
See Afri-Forum and Another v Julius Sello Malema and Others 2011 (12) bclr 1289 (EqC); South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Masuku and Another [2017] 3 All sa 1029 (EqC, J).
Richtersveld and Others v Alexkor Limited and Another [2001] zalcc 10.
In its cos to South Africa’s initial report, the cerd Cttee requested that South Africa should consult with csos and the sahrc in connection with the preparation of its next periodic report.
Solidarity Trade Union’s Centre for Fair Labour Practices argued that South Africa through laws and policies such as the Employment Equity Act and the Broad-Based Black Economic Empowerment Act seeks to promote a demographic representative society which in reality promotes neo-racism. The application of affirmative action under the constitutional ideology of unfair discrimination is contrary to the provisions of art 1(4) of cerd. On the other hand, Police and Prisons Civil Rights Union contended that transformation in the form of affirmative action such as the Employment Equity Act and the Broad-Based Black Economic Empowerment Act is required to achieve equality and redress apartheid disparities in South Africa. The organisation argued that the special measures taken by South Africa comply with the Convention.
An illustration of the quality of the cerd report is exemplified in the request by two members of the cerd Cttee that the South African report should be sent to their home countries of Brazil and Guatemala. Summary Record of cerd Initial Report, South Africa, cerd/c/sr.1766, pages 8, 9.
cerd First Periodic Report, South Africa, cerd/c/zaf/4–8, paras 11–17.
ibid para 19.
ibid para 20.
ibid para 56.
ibid para 86.
Summary Records of cerd First Periodic Report, South Africa, cerd/c/sr.2460, para 8.
Interview with an anonymous government official. Physical interview conducted at the University of Pretoria on 29 July 2019.
sahrc Equality Report 2017/2018.
sahrc Equality Report, 2017/2018 34.
See shadow reports submitted to the cerd Cttee in the consideration of cerd First Periodic Report, South Africa, cerd/c/zaf/4–8by Solidarity Trade Union’s Centre for Fair Labour Practices and Police and Prisons Civil Rights Union. See also ‘Solidariteit: Our Visit to the UN: Questions and Answers’ <
<
Some of the laws enacted to combat the residue of apartheid in South Africa include the Film and Publication Act of 1996; the South African Schools Act of 1996; the Culture Promotion Amendment Act of 1998; the National Empowerment Fund Act of 1998; the Refugees Act of 1998; the Employment Equity Act of 1999; and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
In its initial report to the cerd Cttee, South Africa elaborated on the ‘South African concept of unfair discrimination’. The country stated that the distinction between fair and unfair discrimination as permitted under national laws is ‘slightly different from that which underpins’ cerd. See cerd Initial Report, South Africa 10. In its discussion with the cerd Cttee, the Cttee consistently asked the South African delegates to clarify the concept of ‘unfair discrimination’. See Summary Record of cerd Initial Report, South Africa,, cerd/c/sr.1766, pages 4, 6. In his response to the cerd Cttee members, the Deputy Minister of Justice maintained that contrary to the position of the cerd Cttee members on unfair discrimination, ‘article 1(4) of the Convention amounted to an acknowledgment that, in certain circumstances, special measures could be taken to promote the advancement of human rights and freedoms and that those measures should not be deemed to be discriminatory’.
Summary Records of cerd First Periodic Report, South Africa, cerd/c/sr.2460 paras 33 and 38.
Arts 2, 3 ccpr; Constitution of the Republic of South Africa, 1996, s 9.
Art 6 ccpr; Constitution of the Republic of South Africa, 1996, s 11.
Art 8 ccpr; Constitution of the Republic of South Africa, 1996, s 13.
Art 9 ccpr; Constitution of the Republic of South Africa, 1996, s 12.
Art 20 ccpr; Constitution of the Republic of South Africa, 1996, s 16(2).
Constitution of the Republic of South Africa, 1996, s 31(1)(a) provides that ‘[p]ersons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of the community, to enjoy their culture, practice their religion and use their language’. Its inclusion is the result of a compromise, and is an attempt to appease fears that especially the Afrikaner identity will not be accorded sufficient protection under the Constitution.
Theme Committee 4 Fundamental Rights Report and Explanatory Memorandum on Children’s Rights to the Constitutional Assembly 11.
Initial Report, ccpr, South Africa, para 9.
Initial Report, ccpr, South Africa, para 57.
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance 54.
2020 (1) sa 90 (gp).
Amabhungane Centre For Investigative Journalism npc & Another v Minister of Justice and Correctional Services and Others para 99.
ibid, para 91.
2019 (1) bclr 88 (cc).
Para 47.
2005 (4) sa 235 (cc) paras 34, 98, 119, 216, 223 & 263.
2019 (2) sa 329 (cc).
2015 (5) sa 83 (cc).
1995 (3) sa 391 (cc).
Case 2008 (1) sa 474 (cc).
2005 (5) bclr 446 (cc) paras 53 & 83.
2019 (6) bclr 703 (cc); here the Court also makes reference to HRCttee General Comment 32, art 14: Right to Equality Before Courts and Tribunals and to Fair Trial.
2020 (1) sa 1 (cc).
cct 2017 (3) sa 570 (cc).
2016 (2) sa 338 (cc).
2006 (6) sa 416 (cc).
2008 (4) sa 458 (cc) para 30.
Pather v Financial Services Board 2018 (1) sa 161 (sca) para 15; City of Cape Town v South African National Roads Authority Limited and Others 2015 (3) sa 386 (sca) para 13.
Hattingh v Juta 2013 (3) sa 275 (cc) para 14.
salrc Discussion Paper on Sexual Offences and Adult Prostitution 2009 93, 94.
salrc Discussion Paper on Privacy and Data Protection 2006, ch 2, 2. See also salrc Issue Paper 29, The Review of the Witchcraft Suppression Act 3 of 1957, 2014.
African Civilian Policing Oversight ‘McCallum v South Africa, UN Doc ccpr/c/100/d/1818/2008 (2 November 2010)’ <
<
ccpr Initial Report, South Africa, ccpr/c/zaf/1, page 4.
This information is contained in at least two shadow reports submitted to the Human Rights Committee. See ‘Thematic Report on Criminal Justice and Human Rights in South Africa’; ‘Civil Society Report on the Implementation of the iccpr’. See also Summary Records of ccpr First Periodic Report, South Africa, ccpr/c/sr.3235 page 4.
See generally South African Human Rights Commission, List of Issues Report to the Human Rights Committee on South Africa’s Implementation of the International Covenant on Civil and Political Rights.
South Africa List of Delegate, Ref: 32/2016.
Summary Records of ccpr First Periodic Report, South Africa, ccpr/c/sr.3234, page 2.
See, generally, cos on the ccpr Initial Report of South Africa, ccpr/c/zaf/co/1.
<
<
HRCttee, McCallum v South Africa (2 November 2010) para 7.
ibid para 9.
ibid para 4.
ccpr Initial Report, South Africa, ccpr/c/zaf/1 para 88.
ibid para 89.
ibid.
Summary Records of ccpr First Periodic Report, South Africa, ccpr/c/sr.3234, ccpr Initial Report, South Africa, ccpr/c/zaf/1, para 29.
HRCttee, Follow-up progress report on individual communications received and processed between June 2014 and January 2015, ccpr/c/113/3, 48.
HRCttee, Gareth Anver Prince v South Africa (14 November 2007) para 8.
The report stated that ‘South Africa’s initial report to the United Nations Human Rights Council was submitted in 2014 and deliberated on in 2016 by the body of independent experts that monitors the implementation of the iccpr by the State parties to this covenant’. See Department of Justice and Constitutional Development Annual Report 2017–2018 67.
Heyns and Viljoen (n 29) 553.
Constitution of the Republic of South Africa, 1996, s 29.
Constitution of the Republic of South Africa, 1996, s 28.
Constitution of the Republic of South Africa, 1996, s 27.
Constitution of the Republic of South Africa, 1996, s 26.
Constitution of the Republic of South Africa, 1996, s 24.
National Health Insurance Bill (2019) 2.
cescr was merely listed alongside the Universal Declaration of Human Rights as one of the many international treaties and instruments to which South Africa is a signatory that protect individual rights to health and well-being.
White Paper on Corrections in South Africa 80 para 11.7.5.
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance 46.
White Paper on the Rights of Persons with Disabilities 11.
[2020] 4 All sa 102 (gp).
Para 35.
Para 40.
[2016] zawchc 167.
2010 (4) sa 1 (cc) paras 41 & 52.
ibid, paras 40 & 62.
ibid, para 40.
Government of the Republic of South Africa and Others v Irene Grootboom and Others 2000 (11) bclr 1169; Minister of Health and Others v Treatment Action Campaign 2002 (5) sa 721; City of Johannesburg v Rand Properties (Pty) Ltd 2007 (6) bclr 643 (sca); Pontsho Doreen Motswagae and Others v Rustenburg Local Municipality and Another 2013 (2) sa 613 (cc).
The Minister of Social Development of the Republic of South Africa and Others v Net1 Applied Technologies South Africa (Pty) Ltd and Others; The Black Sash Trust and Others v The ceo: The South African Social Security Agency and Others [2018] zasca 129.
Governing Body of the Juma Musjid Primary School and Others v Ahmed Asruff Essay no and Others 2011 (8) bclr 761 (cc) paras 40 & 41; Equal Education and Others v Minister of Basic Education and Others 2018 (9) bclr 1130 (ecb).
Jade September v Mr Subramoney [2019] 4 All sa 927 (wcc) para 91.
cescr Cttee General Comment 24: State Obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, para 4.
Case cct 50/16, judgment of 11 May 2017, paras 37–39.
salrc Discussion Paper on Sexual Offences and Adult Prostitution 2009, 93 & 94.
Some of the organisations include the Centre for Applied Legal Services, Sex Workers Education and Advocacy Task Force and Dullar Omar Institute.
Interview with Prof Ebenezer Durojaye, Project Head, Socio-Economic Rights Project, Dullah Omar Institute, University of Western Cape, in-person interview conducted at the University of Western Cape on 22 August 2019.
cescr Initial Report, South Africa, e/c.12/zaf/1 page 4.
cos on the cescr Initial Report of South Africa, e/c.12/zaf/co/1, page 1.
cescr Initial Report, South Africa, e/c.12/zaf/1 page 4.
Parliamentary Monitoring Group ‘Social Assistance Amendment Bill [B8– 2018]: public hearings’ <
ibid.
Parliamentary Monitoring Group ‘Social Assistance Amendment Bill (B8–2018)’ <
Heyns and Viljoen (n 29) 554.
Constitution of the Republic of South Africa s 9.
Constitution of the Republic of South Africa s 27(1)(a).
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; cedaw Cttee, cos on the combined second, third and fourth periodic report of South Africa, paras 26–28. Women Empowerment and Gender Equality Bill [B50–2013].
Recognition of Customary Marriages Act 120 of 1998.
Choice of Termination of Pregnancy Act 96 of 1992.
Prevention and Combating of Trafficking in Persons Act 7 of 2013.
cedaw is invoked explicitly in the Preamble to the Domestic Violence Act 116 of 1998 and Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
South Africa’s National Policy for Women’s Empowerment and Gender Equality, Executive Summary 20.
cge Shadow Report notes that there ‘has been operating without adequate human resource capacity for extended periods of time. Coupled with a high turnover of staff, this ultimately contributed to a lack of performance in meeting its mandate effectively.’ cge, Report to the cedaw Cttee on South Africa’s implementation of cedaw: 1998–2008 15. In the ngo Shadow Report on Beijing +15, it noted: ‘Despite the State’s reliance on civil society organizations to provide services to survivors of violence, it fails to adequately resource these organizations.’ (People Opposing Women Abuse (powa) with the aids Legal Network (aln); One in Nine Campaign and the Coalition for African Lesbians (cal), Criminal Injustice: Violence Against Women In South Africa (2010)).
Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) bclr 1 (cc); Shibi v Sithole and Others cct69/03; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) sa 850 (cc); 2005 (1) bclr 1 (cc); Gumede v President of the Republic of South Africa and Others (Women’s Legal Centre Trust as Amicus Curiae) [2008] zacc 23; Shilubana v Nwamitwa 2009 (2) sa 66 (cc).
Daniels v Campbell no and Others 2004 (7) bclr 735 (cc).
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) sa 938 (cc); S v Baloyi and Others 2000 (2) sa 425 (cc); Masiya v Director of Public Prosecutions Pretoria and Another (Centre for Applied Legal Studies, Tshwaranang Legal Advocacy Centre as Amici Curiae) 2007 (8) bclr 827 (cc).
cge, Annual Report 2009–2010 32.
On 30 March 2009 Ms. Clark, a staff member of the salrc, attended a seminar on Harmful Traditional Practices for a Joint Research Undertaking on cedaw.
(salrc, Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriages (1998)). However, in its 2003 report on Islamic marriages the salrc did not refer to cedaw. See salrc, Project 59 Islamic Marriages and Related Matters Report (2003). See also salrc Issue Paper 3 on the Harmonisation of the Common Law and the Indigenous Law, 1996 viii and salrc Twenty Fifth Annual Report, 1997, 74.
salrc’s Research Paper on Domestic Violence relies on the provisions in cedaw dealing with domestic violence, as well as on General Comment 19 adopted by the cedaw Cttee in 1992 (salrc, ‘Research Paper on Domestic Violence,’ April 1999, para 4.8.6).
salrc Issue Paper 28 Review of the Maintenance Act 1998, 2014 10.
salrc Discussion Paper on Aspects of the Law Relating to aids – Compulsory hiv Testing of Persons Arrested in Sexual Offence Cases, 1999 122, 123, 132 & 138.
salrc Discussion Paper 85, Sexual Offences: The Substantive Law, 1999, 30–40. The salrc also referred to the initial report of South Africa to the cedaw Cttee in which the country admitted that some of its laws on prostitution may violate constitutional rights. See salrc Issue Paper 19 Sexual Offences: Adult Prostitution 2002 37. See also salrc Discussion Paper on Sexual Offences and Adult Prostitution 2009 53–54 and 94–96 and salrc, Report Project 107, Sexual Offences and Adult Prostitution (2015) 20.
See Discussion Paper 132, ‘The Practice of Ukuthwala’ 2014 32.
Sonke Gender Justice, ‘Sonke Participates in a Number of Landmark Global Conferences’ (2009)<
L Foster, Country Papers, South Africa, The First cedaw impact Study (2010), 115. <
South African Shadow Report of the cedaw, submitted to the cedaw Cttee’s 48th session (17 January-4 February 2011) by Centre for the Study of Violence and Reconciliation, People Opposing Women Abuse, Western Cape Network on Violence Against Women 7.
South African Shadow Report of the cedaw, submitted to the cedaw Cttee’s 48th Session (17 January-4 February 2011) by Centre for the Study of Violence and Reconciliation, People Opposing Women Abuse, Western Cape Network on Violence Against Women 7.
ibid. 16 <
F Kathree, ‘Convention on All Forms of Discrimination Against Women’ (1995) 11 sajhr 421; NM Ngema, ‘Considering the Abolition of Ilobolo: Quo Vadis South Africa?’ (2002) 2 Speculum Juris 30–46.; A Rudman, ‘Women’s Access to Regional Justice as a Fundamental Element of the Rule of Law: The Effect of the Absence of Women’s Rights Committee on the Enforcement of the African Women’s Protocol’ (2018) 18 African Human Rights Law Journal 319; R Kovacs, S Ndashe and J Williams, ‘Twelve Years Later: How the Recognition of Customary Marriages Act of 1998 is Failing Women in South Africa’ (2013) Acta Juridica 273.
J Linnegar and K McGillivray, Women and the Law in South Africa (Juta & Company (1998); D Brand and C Heyns Socio-Economic Rights in South Africa (pulp 2005); H Britton, J Fish and S Meintjes Women’s Activism in South Africa: Working Across Divides (University of Kwa-Zulu Natal Press 2009); M Payandeh and others, The Implementation of International Law in Germany and South Africa (pulp 2015); S Hassim, The anc Women’s League: Sex, Gender Politics (Ohio University Press 2015).
L Kapp, ‘Employment Equity in sandf: Practical Implications and Challenges’ (2002) Industrial Sociology in the School of Behavioural Sciences at the Faculty Vaal Triangle of the Potchefstroom University for Christian Higher Education.; K de Villiers Graaf, ‘Masculinities and Gender-Based Violence in South Africa: A Study of a Masculinities-Focused Intervention Programme’ PhD thesis, University of Stellenbosch, 2017.
The Initial report was due on 14 January 1997, but was only submitted on 5 February 1998. This delay of almost a year may be ascribed to the fact that this was South Africa’s first country report, and that a system had not yet been put in place to oversee the reporting obligation.
The cedaw Cttee has commended the country reports as being clear and frank Summary Records of cedaw Initial Report, South Africa, cedaw/c/sr.387 page 7.
The cedaw Cttee invited South Africa to follow the Harmonised Guidelines (hri/mc/2006/3 and Corr.1) which require ‘the treaty specific document to be limited to 40 pages, while the updated common core document should not exceed 80 pages’. cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 51.
Mr Jackie Selebi, Director-General of Foreign Affairs, Opening Address to nap Workshop, 20 June 1998.
cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4 para 49.
cedaw Initial Report, South Africa, cedaw/c/zaf/1, para 110; cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 3.
South African Shadow Report of the cedaw, submitted to the cedaw Cttee 48th session (17 January-4 February 2011) Submitted by Centre for the Study of Violence and Reconciliation, People Opposing Women Abuse, Western Cape Network on Violence Against Women.
In 2010 the International Disability Alliance provided both recommendations for disability-relevant questions to be included in the list of issues 46th Pre-Sessional Working Group (2–6 August 2010) <
Commission of Gender Equality, Report to the cedaw Cttee on South Africa’s Implementation of cedaw: 1998–2008 (2010).
cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 21.
ibid para 30.
cedaw Initial Report, South Africa, cedaw/c/zaf/1, para 131; cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 34.
cedaw Initial Report, South Africa, cedaw/c/zaf/1, para 134.
cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 25.
ibid para 32.
ibid para 38.
ibid para 28.
ibid para 40.
ibid para 42.
ibid paras 15 & 42.
cedaw Initial Report, South Africa, cedaw/c/zaf/1, para 137; cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 46.
cos on the cedaw First Periodic Report of South Africa, cedaw/c/zaf/co/4, para 15.
ibid para 48.
Follow-up Report to cedaw First Periodic Report, South Africa, cedaw/c/zaf/co/4/Add.1, paras 24 and 33.
cedaw Second Periodic Report, South Africa, cedaw/c/zaf/5 paras 266–281.
In the cedaw Cttee, cos on the cedaw First Periodic Report of South Africa, the cedaw Cttee expressed its concerns at the ‘weak institutional capacity of this Ministry (for Women, Youth and People with Disabilities), including inadequate human, financial and technical resources’ and the impact this may have on effectively discharging its duties (cedaw Cttee, cos on the combined second, third and fourth periodic report of South Africa, para 18). In response, the Ministry of Women, according to its cedaw Second Periodic Report, reviewed ‘the Department’s institutional capacity and is putting in place human, financial and technical resources in order to strengthen its capacity to monitor and evaluate the impact of programmes on women’s empowerment, to report and make recommendations, to coordinate stakeholders and its outreach capacity’ (cedaw Second Periodic Report, South Africa, cedaw/c/zaf/5, South Africa, para 35).
National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance 23.
anc Preliminary Submission, Theme Committee 4: Our Broad Vision of a Bill of Rights for South Africa <
The Prevention and Combating of Torture of Persons Act 13 of 2013, Preamble.
<
White Paper on the Rights of Persons with Disabilities 69.
White Paper on Remand Detention Management in South Africa 12 <
Policy on the Prevention of Torture and the Treatment of Persons in Custody of the South African Police Service 1.
Mail & Guardian, ‘Introducing South Africa’s Mechanism for the Prevention of Torture’ <
2019 (2) sacr 537 (wcc).
2020 (5) sa 490 (gp).
ibid para 137.
ibid para 146(5).
Khalfan Khamis Mohamed and Another v President of South Africa and 6 Others 2001 (3) sa 893 (cc). See also Tantoush v Refugee Appeal Board 2008 (1) sa 232 (T); Alex Ruta v Minister of Home Affairs 2019 (3) bclr 383 (cc); Dobrosav Gavrić v Refugee Status Determination Officer and Others 2019 (1) bclr 1 (cc); Emmanuel Tsebe and Society for the Abolition of the Death Penalty in South Africa v The Minister of Home Affairs and Others 2012 (1) bclr 77 (gsj). The South Gauteng High Court, after quoting art 3 of cat, stated that ‘[t]he evidence referred to above in paragraphs [61] to [67] constitute in our view proof of ‘a consistent pattern of gross, flagrant … violations of human rights’ as contemplated in the above Convention’.
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another 2015 (1) sa 315 (cc); Bongani Mthembu v The State 2008 3 All sa 159 (sca).
sahrc, Annual Report 2007/2008 13, 18, 29; sahrc, Annual Report 2006/2007 32; sahrc, Annual Report 2008/2009 13.
sahrc, Annual Report Human Rights Advocacy and Communications Unit 31.
Truth and Reconciliation Commission of South Africa, Report, vol 1 78. The Commission in its report referred to the HRCttee cases of Bleier v Uruguay (Case No 30/1978); Camargo v Columbia (Case No 45/1979); Dermit v Uruguay (Case No 84/1981); Quinteros v Uruguay (Case No 107/1981); Baboerem v Suriname (Cases No 146/1983 & 148–154/1983); Muiyo v Zaire (Case No 194/1985). The Commission also referred to the communication by the cat Cttee to the government of Argentina that it should ensure that victims of torture receive adequate compensation. See Truth and Reconciliation Commission of South Africa Report, vol 5 173.
However, the salrc listed cat alongside cedaw, crc and op-crc-sc as one of the international conventions that regulates trafficking in persons. See salrc, Issue Paper 25 Trafficking in Persons 2004 5–8.
<
Dullah Omar Institute: A5I hosted a workshop on the prevention and eradication of torture in South Africa <
ibid.
<
<
Centre for the Study of Violence and Reconciliation, ‘From Horror to Healing: Remembering Torture Victims and Their Families on June 26, 2016: The International Day in Support of Torture Victims and Their Families’ <
CSVR ‘Torture in South Africa: The Acts and the Fact’ <
See Lukas Muntingh ‘Preventing and Combating Torture in South Africa: A Framework for Action under CAT and OPCAT’ CSVR, 2008 <
Sonke Gender Justice, ‘Detention Justice Forum Annual General Meeting 2015: Forging Synergies for Human Rights and Dignity’ <
cat First Periodic Report, South Africa, cat/c/zaf/2 page 3.
cat First Periodic Report, South Africa, cat/c/zaf/2 page 28.
The three csos are Amnesty International, Global Initiative to End All Corporal Punishment of Children and World Organisation Against Torture.
<
South Africa’s First Periodic Report to the cat Cttee was focused on general descriptions of national policies and measures as opposed to responding to the cat Cttee’s previous concerns on non-refoulement. The long delay in the submission of the report and absence of institutional memory with respect to state reporting may be a crucial factor in the vagueness of the responses in the first periodic report.
cat First Periodic Report, South Africa, cat/c/zaf/2 paras 67–69.
cat First Periodic Report, South Africa, cat/c/zaf/2 para 74. This response did not directly address the previous recommendation that required South Africa to undertake research into the high rate of rape and sexual violence and establish awareness-raising campaigns.
The difficulty is also exacerbated by the fact that the cerd Cttee has issued similar recommendations on sexual violence to South Africa.
Heyns and Viljoen (n 29) 555.
ibid.
Theme Committee 4, Fundamental Rights Report and Explanatory Memorandum on Children’s Rights to the Constitutional Assembly 8, 10, 12.
crc Initial Report, South Africa, crc/c/51/Add.2, para 310.
crc First Periodic Report, South Africa, crc/c/zaf/2, para 38(a).
ibid para 38(h).
ibid para 38(i). Unlike the previous Acts, the Defence Act did not make express reference to op-crc-ac.
Department of Women, Children and People with Disabilities, National Plan of Action for Children (2012–2017) 9.
crc was reproduced in annexure B1; op-crc-sc was reproduced in annexure B1.1; op-crc-ac was reproduced in annexure B1.2.
National Programme of Action for Children (2012–2017) 13.
ibid 98.
Heyns and Viljoen (n 29) 549.
The National Programme of Action comprehensively listed the different articles of crc that are relevant to each of the policy areas that it covered. National Programme of Action for Children, ‘Framework’ <
Drug Advisory Board, National Drug Master Plan 1999 (unpaged document) <
Department of Social Development, National Integrated Early Childhood Development Policy 2015 (2015) 50.
The National Policy Framework for Orphans and Other Children Made Vulnerable by hiv and aids made reference to arts 2, 3, 5, 6, 8, 9, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 24, 25, 27, 28–29, 31, 32, 33 and 34 of crc. See Department of Social Development, National Policy Framework for Orphans and Other Children Made Vulnerable by hiv and aids 50.
National School Health Policy and Implementation Guidelines 6, 12.
Department of Health, Infant and Young Child Feeding Policy iii, 2, 4.
Department of Health and Department of Basic Education, Integrated School Health Policy (2012) 3, 5.
South African Integrated Programme of Action Addressing Violence Against Women and Children (2013–2018) 2, 8. The policy further listed op-crc-ac and op-crc-sc together with other treaties ratified by South Africa in its annexure.
Department of Basic Education, National Strategy for the Prevention and Management of Alcohol and Drug Use Amongst Learners in Schools 2013 iv, 13.
Ministry of Social Development, National Adolescent Sexual and Reproductive Health and Rights Framework Strategy 2014–2019 21.
Practice Guidelines on Inter-Country Adoption 3.
Department of Health, National Consolidated Guidelines for the Prevention of Mother-to-Child Transmission of hiv (pmtct) and the Management of hiv in Children, Adolescents and Adults 18.
Department of Health, Disclosure Guidelines for Children and Adolescents in the Context of hiv, tb and Non-Communicable Diseases 2016 13.
National Policy Guidelines on Victim Empowerment 7. See also Second Periodic Report, cat, South Africa, para 102.
crc Initial Report, South Africa, crc/c/51/Add.2, para 20.
ibid para 185.
2018 (1) sacr 64 (gj).
Para 56. The court also referred to a similar recommendation of the African Committee of Experts on the Rights and Welfare of the Child that called upon South Africa to ban corporal punishment in the home. See para 57. The Court noted that the ratification of crc by South Africa has spawned specific legislation establishing a detailed framework for the protection of children (para 48). The Court stated that even though crc does not expressly deal with physical chastisement, the crc Cttee in General Comment 8 had stated that corporal punishment is incompatible with crc. The Court also replicated 5 paras from the crc Cttee General Comment 13 in its judgment.
Para 85. Even though the Constitutional Court upheld the High Court’s decision on appeal, it made no reference to crc or the cos in its judgment. The Court based its decision on the provisions of section 12 of the Constitution. See Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others 2019 (11) bclr 1321 (cc) para 73.
2012 (4) bclr 329 (cc).
ibid para 25.
2000 (7) bclr 713 (CC).
2008 (4) bclr 359 (cc) para 38.
2014 (2) sacr 1 (cc) para 40.
2009 (11) bclr 1105 (cc).
nchc 268/2013 para 14.
nhgc 27748/2015 para 26.
nhgc 95071/2016 para 16.
sca 52/05 para 8.
South African Law Reform Commission Report 2018/ 2019 27. salrc Discussion Paper 85, Sexual Offences – The Substantive Law, 1999 18–30. See also salrc Discussion Paper on Aspects of the Law Relating to aids – Compulsory hiv Testing of Persons Arrested in Sexual Offence Cases, 1999 139. Also, see generally salrc, Issue Paper 10 on Sexual Offences Against Children, 1997; salrc, Discussion Paper 149 Sexual Offences Pornography and Children 2019 xxii, 2–7. salrc, Issue Paper 30 Sexual Offences: Pornography and Children 2015, 48, 49, 52, 60, 95.
See generally salrc, Discussion Paper 149 Sexual Offences Pornography and Children 2019 2–7.
salrc, Discussion Paper 103 Review of the Child Care Act, 2002; salrc, Executive Summary Review of the Child Care Act. See also salc Bulletin Vol 3 No 1, May 1998 1, 2. See also salrc, Review of the Child Care Act Report, 2002 3.
salrc Review of the Child Care Act Report, 2002 3.
See salrc, Issue Paper on Juvenile Justice, 1997. In the opening paragraph of the Issue Paper the Commission stated that ‘[b]y ratifying the Convention, South Africa is now obliged, in terms of article 40(3) thereof, to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law’. See also salc Bulletin Vol 2 No 2, June 1997, and salc Bulletin Vol 2 No 3, October 1997 5.
salrc, Discussion Paper on the Harmonisation of the Common Law and the Indigenous Law, 1997 5, 8, 74, 80. In one of its recommendations in the discussion paper, the salrc stated that ‘[i]t is recommended that, under the Constitution and the United Nations Convention on the Rights of the Child, a parent’s power to consent to marriage must be exercised only in the child’s best interests. Accordingly, a guardian may not unreasonably prevent a ward’s marriage’ (82).
During August 1997 the salrc published a discussion paper on customary marriages for general information and comment. One of the recommendations in the discussion paper is that in accordance with s 28(3) of the Constitution and the United Nations Convention on the Rights of the Child, the child’s best interests should govern all aspects of custody, guardianship and access to children. Because the best interests principle has no specific content, cultural expectations may be accommodated by the courts. To avoid unfair discrimination against women, mothers should have equal rights to children. See salrc, Twenty Fifth Annual Report, 1997 75.
salrc, Research Proposal Paper on Maternity and Paternity Benefits for Self-Employed Workers, 2017 14–15.
The salrc received a request to establish whether the prohibition in the Children’s Act 38 of 2005 on revealing the identity of a surrogate mother and a sperm donor violates the ‘best interest of the child’ principle, as provided for in the Constitution and the UN Convention on the Rights of the Child. Report on Activities of the salrc 2013/2014 68.
salrc, Issue Paper 28 Review of the Maintenance Act 1998, 2014 10.
salrc, Issue Paper 31 Family Dispute Resolution: Care of and Contact with Children 2015 32, 65.
ibid 7.
South African Human Rights Commission 4th Annual Report 1998/1999 70.
In 1987 a conference was held on Children, Repression and the Law in Apartheid South Africa in Zimbabwe. In 1990 the National Committee on the Rights of the Child (ncrc) comprising of more than 200 children’s rights organisations was formed. In 1992 an international conference on the rights of children in South Africa was hosted by the Community Law Centre, University of the Western Cape. See Mail & Guardian, ‘Twenty-Five Years of Children’s Rights’
See eg Equal Education and Others v Minister of Basic Education and Others (n 173); C and Others v Department of Health and Social Development 2012 (2) sa 208 (cc).
Children’s Institute, University of Cape Town, Project 28: Promoting Children’s Socio-Economic Rights.
Parliamentary Monitoring Group, ‘Country Reports (2nd, 3rd and 4th for 1998–2012) on UN Convention and African Charter on Rights of the Child’ <
crc First Periodic Report, South Africa, crc/c/zaf/2 page 13.
Summary Records of crc Initial Report, South Africa, crc/c/sr.609 page 2.
This report was a revision of the 2014 Complementary Report submitted during the consideration of South Africa’s state report by the African Committee of Experts on the Rights and Welfare of the Child.
crc First Periodic Report, South Africa, crc/c/zaf/2, para 54.
<
cos on the crc Initial Report of South Africa, crc/c/15/Add.122, para 17.
Department of Justice and Constitutional Development, Briefing by the Department of Justice and Constitutional Development on the Review of the Age of Criminal Capacity (Section 8 Read with Section 96(4) and (5) of the Child Justice Act, 2008) (Act 75 of 2008) <
[B32B-2018].
<
<
crc First Periodic Report, South Africa, crc/c/zaf/2 page15. S 12(4) of the Children’s Act prohibits virginity testing for children under 16 years of age. S 12(5) of the Act permits the testing of children older than 16 only (a) if the child has given consent to the testing in the prescribed manner; (b) after proper counselling of the child; and (c) in the manner prescribed. Furthermore, s 12(8) of the Act prohibits circumcision of male children under the age of 16, except when (a) circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or (b) circumcision is performed for medical reasons on the recommendation of a medical practitioner.
Ss 15 & 16 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. See crc First Periodic Report, South Africa, crc/c/zaf/2 page 19.
Interview with Prof. Ann Skelton, Member, crc Cttee. Physical interview conducted at the University of Pretoria, South Africa on 8 January 2020.
South Africa also receives international aid from development agencies such as idc, usaid and Save the Children towards the promotion of children’s rights. See crc 2nd-4th Periodic Report 17; crc First Periodic Report, South Africa, para 52. unicef South Africa, ‘unicef South Africa and sa Human Rights Commission Partner to Advance Children’s Rights’<
Summary Records of crc Initial Report, South Africa, crc/c/sr.610 page 7.
crc First Periodic Report, South Africa, crc/c/zaf/2 page 31.
Summary Records of crc Initial Report, South Africa, crc/c/sr.610 page 5.
Electronic Communications Amendment Bill B31–2018 35 para 3.1.
Women Empowerment and Gender Equality Bill B 50D-2013 5.
White Paper on the Rights of Persons With Disabilities 2016 19 <
dsd Policy on Disability 11 <
Department of Social Development Annual Report 2012/2013 15.
crpd Initial Report, South Africa, crpd/c/zaf/1 para 1.
The Strategic Policy Framework on Disability for the Post School Education and Training System <
crpd Initial Report, South Africa, crpd/c/zaf/1 para 275.
White Paper on the Rights of Persons with Disabilities 2015 15.
Press briefings by the Minister of the Department of Women, Children and Persons with Disabilities <
2015 (2) sacr 217 (cc).
2009 (4) sa 222 (cc).
2017 (3) sa 435 (wcc).
Murray John Martyn Bridgman no v Witzenberg Municipality para 11.
2011 (5) sa 87 (wcc). The Equality Court also applied the principles of crpd in Parvathi Singh v The Minister of Justice and Constitutional Development, The Director General for the Department of Justice and Constitutional Development and Magistrates Commission paras 34 and 35.
crpd Initial Report, South Africa, crpd/c/zaf/1, para 53.
sahrc, Equality Report: Commentaries on Equality: Race, Gender, Disability and lgtbi Issues 2012 33.
salrc 38th Annual Report, 2010/2011 39–40.
salrc 39th Report, 2011/2012 59.
salrc Project 122 Assisted Decision-Making Report 2015 1. See also salrc Issue Paper 31 Family Dispute Resolution: Care of and Contact with Children 2015 88, 89.
The salrc premised its recommendations on the interpretation that favours art 12(2) of crpd as it relates to legal capacity. Several sections of the final draft Bill by the Commission reflected the provisions of art 12 of crpd. See salrc Project 122 Assisted Decision-Making Report 2015 111–114.
South African Law Reform Commission Report, 2018/ 2019 55.
11th Commission for Employment Equity Annual Report 2010–2011 2.
Centre for Human Rights, ‘Taking Stock of the Committee on the Rights of Persons with Disabilities cos to South Africa’ <
A Holoboff and S Phillips, ‘Leveraging the International Human Rights System to Advance Local Change for South African Women with Disabilities’ (2019) 7 African Disability Right Yearbook 247.
H Combrinck, ‘Rather Bad Than Mad? A Reconsideration of Criminal Incapacity and Psychosocial Disability in South African Law in Light of the Convention on the Rights of Persons with Disabilities’ (2018) 6 African Disability Rights Yearbook 3–26
R White and D Msipa, ‘Implementing Article 13 of the Convention on the Rights of Persons with Disabilities in South Africa: Reasonable Accommodations for Persons with Communication Disabilities’ (2018) 6 African Disability Rights Yearbook 99 <
I Grobbelaar-Du Plessis and C Grobler, ‘South African Country Report on Disability’ (2013) 1 African Disability Rights Yearbook 307.
M Nswela, ‘Violent Attacks Against Persons with Albinism in South Africa: A Human Rights Perspective’ (2017) 17 African Human Rights Law Journal 114 <
crpd Initial Report, South Africa, crpd/c/zaf/1, para 16.
See <
White Paper on the Rights of Persons with Disabilities 10.
Interview with Innocentia Mgijima, Manager Disability Rights Unit, Centre for Human Rights, University of Pretoria. Physical interview conducted at the University of Pretoria on 12 August 2019.
It was submitted in 2017, and declared inadmissible after the cut-off mark for this study (cprd Cttee, anp v South Africa, crpd/c/23/d/73/2019 (submitted 19 September 2017; declared inadmissible 28 August 2020).
crpd Initial Report, South Africa, crpd/c/zaf/1 page 37.
crc Initial Report, South Africa, crc/c/51/Add.2, para 20.
Summary Records of crc Initial Report, South Africa, crc/c/sr 610 page 5.
The lack of contextual understanding was also stated by a government official. (Interview with anonymous government official. Physical interview conducted at the University of Pretoria on 29 July 2019).
2020 (1) sa 90 (gp).
crc First Periodic Report, South Africa, crc/c/zaf/2, paras 106 & 108.
ibid.
The lack of qualitative and quantitative information was raised in the cos of the treaty bodies to South Africa.
The cerd Cttee in its cos on the cerd First Periodic Report of South Africa, cerd/c/zaf/co/4–8 required South Africa to involve the sahrc and csos in the preparation of its next periodic report.
crc First Periodic Report, South Africa, crc/c/zaf/2, para 107.
Parliamentary Monitoring Group ‘Country Reports (2nd, 3rd and 4th for 1998–2012) on UN Convention and African Charter on Rights of the Child’ <
ibid.
ibid.