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Committee on the Elimination of Racial Discrimination considers the report of South Africa
South Africa reviewed
10 August 2016
Introducing the report, John Jeffery, Deputy Minister, Department of Justice and Constitutional Development of South Africa, said that dismantling the edifice of apartheid involved much more than the repeal of apartheid legislation and its replacement with legislation based on equality and the rule of law; it required political will, resources, building new institutions to support constitutional democracy, and the progressive realization of the socio-economic rights of all people. Significant progress had been made in realizing the national vision of improving the quality of life of all citizens, including in eradicating extreme poverty and advancing gender equality and empowerment of women, which remained central to the struggle for freedom. The effects of racism were still felt today, and South Africa had developed the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance. The Prevention and Combatting of Hate Crimes and Hate Speech Bill, expected to be passed into law by the end of 2016, would create offences of hate crimes and hate speech.
The South Africa Human Rights Commission acknowledged the tremendous strides taken by the Government to address the legacy of apartheid, particularly racial, sexist and socio-economic imbalances of the past, but noted that high levels of racism continued to plague the society and impacted negatively on nation-building. Racial tensions continued to plague sectors of society and provided the context within which the attitude towards non-nationals, such as high levels of xenophobia and hate speech against non-nationals in South Africa, should be viewed. The Commission expressed concern that, in a country such as South Africa, where racism and racial discrimination were deeply ingrained, the criminalization of racism might have the inadvertent effect of increasing racial tensions amongst the different racial groups.
Committee Experts remarked that inequalities between the poor black majority and prosperous white minority were flagrant, and took note of the special measures adopted to reduce disparities and inequality between the different population groups. Experts took note of the rather rigid approach to the application of quotas, which seemed to favour quantitative over qualitative, and urged South Africa to ensure that its affirmative action was aligned to the Convention and the Committee’s General Recommendation N° 32 of 2009. Experts expressed concern about the frequency of hate crimes and the rise in racism and xenophobia, and noting the lack of efficiency in dealing with such crimes, asked how those issues would be addressed in the new National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance. Discrimination against women and high levels of violence against women continued, and access of women to justice and reparation under the law continued to be hampered by lack of political will and resources. Experts also inquired about the status of the land reform and land redistribution process, immigration policy and management, the transformation of the judiciary, and the criminalization of racial discrimination.
In concluding remarks, Fatimata Binta Victoire Dah, Committee Expert and Rapporteur for South Africa, said that South Africa should strive to accelerate the transformation, ensure that the young generations lived the ideal of post-apartheid, and avoid the threat of a cultural revolution.
Mr. Jeffery said that South Africa had indeed come a long way; it was not enough to outlaw discrimination, he said, stressing the need to address mind-sets.
Anastasia Crickley, Committee Chairperson, encouraged the engagement of South Africa with a range of treaty bodies as they could, in very practical ways, help the clearly stated intention to progressively realize the rights of all who were part of South Africa.
The delegation of South Africa included representatives of the Department of Justice and Constitutional Development, Department of International Relations and Cooperation, Department of Cooperative Governance and Traditional Affairs, Department of Home Affairs, and the Permanent Mission of South Africa to the United Nations Office at Geneva.
The concluding observations on the report of South Africa will be made public on Monday, 29 August and will be available here.
Live webcast of country reviews is available at http://www.treatybodywebcast.org.
The Committee will reconvene in public on Wednesday, 10 August at 3 p.m. to consider the combined eighteenth to twenty-second periodic report of Lebanon (CERD/C/LBN/18-22).
Report
The combined fourth to eighth periodic report of South Africa can be read here: CERD/C/ZAF/4-8.
Presentation of the Report
JOHN JEFFERY, Deputy Minister, Department of Justice and Constitutional Development of South Africa, said that the work that must be done to address the inequalities which had resulted from years of apartheid rule was substantial, and that dismantling the edifice of apartheid involved much more than the repeal of apartheid legislation and its replacement with legislation based on equality and the rule of law. It required political will, resources, building new institutions to support constitutional democracy and the progressive realization of the socio-economic rights of all people. Significant progress had been made in realizing the national vision of improving the quality of life of all citizens and freeing the potential of each person. For example, between 2002 and 2014, the number of five year olds attending early childhood facilities had more than doubled from 39 per cent to 87 per cent; adult literacy had increased from 73 per cent to 84 per cent; enrolment ratios at primary education level stood at 98 per cent; and gender parity in education had almost been achieved, with women outnumbering male enrolments in higher education.
A comprehensive approach had been adopted to eradicate extreme poverty and hunger: the anti-poverty approach combined income support with a social wage package that included inter alia clinic-based free primary health care for all, compulsory education which was free for those who could not afford to pay it, and provision of subsidized housing. The majority of South African women who were black were the most oppressed section of the population, suffering under a triple yoke of race, gender and class oppression. The liberation of women had been, and still remained, central to the struggle for freedom, thus the empowerment of women and the achievement of gender equality also involved the transformation of power relations between women, men, institutions and laws, and creating an environment that was conducive to women taking control of their lives.
During the first 20 years of democracy, South Africa had passed more than 1,200 laws and amendments aimed at dismantling apartheid and eradicating all forms of discrimination. Yet, the effects of racism were still felt today, and South Africa had developed the draft National Action Plan to combat racism, racial discrimination, xenophobia and related forms of intolerance in accordance with the Durban Declaration and Programme of Action, as a basis for the development of a comprehensive policy framework to address racism, racial discrimination, xenophobia and related forms of intolerance at the public and private level. The draft National Action Plan was currently undergoing an intense public participation process.
There had been an increase in the manifestation of hate speech and hate crimes, with the South African Human Rights Commission reporting that 68 per cent of equality complaints received in the period 1 April 2015 to 29 February 2016, had been on the basis of race. The new legislation called the Prevention and Combatting of Hate Crimes and Hate Speech Bill had created offences of hate crimes and hate speech, and it had been argued that, because hate crimes had been committed on the basis of nationality, gender identity, HIV status, albinism, intersex and occupation or trade, those should be included in the Constitution as protected grounds. The Bill should be introduced into Parliament before the end of 2016.
The issue of migrants was an important one as a large number of foreign nationals entered South Africa as economic migrants but claimed to be asylum seekers; each application was carefully considered but approximately 95 per cent of such applications were rejected. South Africa was reviewing its migration approach with a comprehensive policy on international migration and was developing a policy on the integration of refugees into society, while short and long-term responses to violence against foreigners had been developed to address attacks on migrants. To advance the achievement of equality of indigenous populations and communities, the Traditional and Khoi-San Leadership Bill had been tabled in Parliament in 2015 which aimed to contribute to the National Development Plan’s key target of broadening social cohesion and unity while addressing the inequalities of the past by providing for the statutory recognition of the Khoisan communities and leaders.
Questions from the Committee Experts
FATIMATA BINTA VICTOIRE DAH, Committee Expert and Rapporteur for South Africa, noted that South Africa had not indicated the methodology used in the drafting of the report, nor had it demonstrated the consultation process with civil society organizations. Eradicating apartheid and building a democratic nation free of racism would indeed take several decades, said the Country Rapporteur and, turning to the country’s legal order, asked how long it would take to review the law and repeal and amend the more than 3,000 legal texts identified by the Law Reform Commission? The Convention had not been incorporated into the country’s legal system, nor was it directly evocable in courts; the fight against racial discrimination was based on the Constitution, the Bill of Rights and the Law N°4 on Promotion of Equality and Prevention of Unjust Discrimination. The jurisprudence on anti-racial discrimination was being developed by courts and the South Africa Human Rights Commission, which had received 35,000 complaints between 2009 and 2013 alone, of which two-thirds referred to racial discrimination.
The inequalities in South African society between the poor black majority and prosperous white minority were flagrant, with the white minority earning six times the revenue of the blacks, controlling the lucrative sectors of agriculture, mining, industry and banking, and owning nine-tenths of the land. In order to reduce the disparities and inequality between the different population groups, South Africa had adopted a range of temporary special measures under the guise of affirmative action, and the Country Rapporteur urged South Africa to pay attention to the Committee’s General Recommendation N° 32 of 2009 on the importance and range of temporary special measures under the Convention. What was very particular for South Africa was that those temporary special measures targeted the majority population, while elsewhere they usually were in place for the benefit of minorities, which was acceptable for as long as the majority in fact constituted the disadvantaged group.
The Land Rights Act, which aimed to redistribute the land, contained special measures which had been due to expire in 2014; by then less than 10 per cent of the land had effectively been redistributed and temporary special measures had been extended to 2025. Another example of temporary special measures was the Broad Based Black Economic Empowerment, based on the 2003 law. What was being done to address the gaps that existed between the official policy and the implementation of temporary special measures? What was the impact of the adopted temporary special measures to date?
In implementing the Durban Declaration and Programme of Action, the National Action Plan against racism, racial discrimination, xenophobia and related forms of intolerance had been drafted. What was its status and how had it addressed all subjects of interest to South Africa, particularly xenophobia? How would the proposals for amendments be taken into consideration in the draft National Action Plan?
Hate speech and hate crimes were very topical issues in the country and the Country Rapporteur asked about specific measures taken to address hate speech and hate crimes in the workplace, schools, social media and networks and in the discourse by politicians?
In terms of the rights of indigenous peoples, the Country Rapporteur inquired about the restitution of ancestral lands to Khoi-San and other indigenous peoples, about the ratification of the International Labour Organization Convention 169, steps taken to address the situation of indigenous families deprived of their livelihood as a result of the decision to supress the fishing quotas, the number of indigenous peoples, and the cooperation with neighbouring countries on the issues of indigenous peoples, particularly with Namibia.
South Africa had made efforts to combat sexism as an extension to combat racial discrimination. Discrimination against women and high levels of violence against women continued, and the access of women to justice and reparation under the law continued to be hampered by lack of political will and resources. Could the delegation comment on this and on the efforts of South Africa to achieve gender equality, eliminate harmful traditional practices, and pass the law protecting women and young girls?
With regard to access to health and education, Ms. Dah remarked that education was a cornerstone of progress and asked whether the official language policy, and the fact that there were 11 recognized languages, were an obstacle to education, and also asked about the cost of education. When would the social security reform be completed and when would the social security system become operational?
A Committee Expert, who was also the Committee Rapporteur on Follow up, recalled that the Committee had selected several issues for follow up with South Africa, including the frequency of hate crime and hate speech, violence against women, the backlog in the asylum system, and xenophobic attitudes, and asked what action had been taken to address the recommendations made by the Committee and what was the reason for the lack of reporting.
The disaggregation of the population also occurred along ethnic lines. What group of the population did indigenous peoples from other parts of the world belong to? Were there any statistics on inter-racial marriages, and if data were not available, what was the reason they were not collected? Discrimination against Dalits was a common feature in Indian societies in many countries all over the world – what was the situation in South Africa in this regard?
Another Expert remarked that the Democratic Alliance Party was a right-wing party, and asked to which extent the new political context in South Africa was generating new impacts on stability, and what it would mean for the existing sequels that still existed following apartheid? What was the actual meaning of “black”; did it only refer to skin colour? What was the situation of land distribution in South Africa – this was an important issue as land concentration, which was typical for apartheid, appeared to still exist? What was the state of play with regard to land and agricultural reform and what was its impact in the country?
Unemployment rates were rather high, 26 per cent: what strategies were being put in place to address this problem and what was its impact on democratic stability of the country? What other strategies were being employed to tackle HIV/AIDS?
South Africa had received an important influx of migrants leading to a rise in xenophobia, and this had demonstrated the need to manage migration, and the importance of a justice system. It was important to note that South Africa had a model Constitution and a well-developed court system, whose independence must be ensured and its rulings must be given effect, if South Africa was to remain a society based on the rule of law. Could the delegation inform about the Equality Court? Turning to affirmative action, an Expert noted that the approach was quantitative rather than qualitative and the application of certain quotas was very rigid in some regions. The affirmative action in sports for example was absurd and people should be helped on the basis of need and not on the basis of skin colour. Giving reason just on the basis of race and skin colour was contrary to the Convention and could risk the return of apartheid to South Africa. Affirmative action could not be justified only by the means it pursued but what counted was the means used in the pursuit of the goal.
With regard to the judiciary, another Expert took note of the portions of the report stating that the judiciary remained white-dominated and that the transformation of the judiciary was necessary to enhance access for the majority of people. The figures quoted in the report in this regard were outdated as they dated to 2009. The report also stated that the positions of “sheriffs” were white-dominated - who were the sheriffs, were they in charge of executing court decisions, attached to the courts, or to liberal professions?
In terms of compliance with article 4 of the Convention and the criminalization of racial discrimination, the delegation was asked to provide data and statistics on hate crimes and hate speech, including on the Internet. The Committee was concerned about the frequency of hate crimes and the lack of efficiency in dealing with such crimes, particularly because the legislation required that the cumulative effect of incitement on hatred and incitement to cause damage were in place. Would the proposed legislation on hate crimes amend this provision? The report of South Africa was very frank in many aspects, particularly in reference to judicial cases involving prosecution for hate speech - it was peculiar that they all involved hate speech proffered by black people against Indians or whites. Temporary special measures did not need to be applied forever; otherwise they would not qualify as temporary special measures. What were the prospects of eliminating socio-economic inequalities and what was the role of the National Action Plan to address racism, racial discrimination, xenophobia and related forms of intolerance in that context? The National Action Plan had some shortcomings which had direct impact on its effectiveness – how would those be addressed in the drafting stage?
The Convention had not been incorporated in the national legal order so Experts wondered what its weight was in the country and how the provisions of the Convention were applied by courts. The Human Rights Charter or the South African Bill of Rights were the cornerstone of democracy which aimed to achieve equality for all South Africans under the law. However, the elimination of inequality required the elimination of all forms of discrimination and therefore it was surprising that the definition of racial discrimination in conformity with article 1 of the Convention had not been incorporated in the Constitution or domestic legislation. Pockets of discrimination still existed in the criminal and civil legislation, for example in matters of evictions, especially because Small Claims Courts did not guarantee equitable proceedings because the presence of both parties were not required and judges were lay personnel and not professional judges trained in dispensing justice. South Africa had a common law based on precedent and customary law tradition; in the post-apartheid period, how was common law applied given the fact that all precedents had originated from apartheid time?
A Committee Expert congratulated South Africa on overcoming the tragedies of the past and creating a post-apartheid society; the project, in the view of some, was taking a long time but South Africa was well on its way. How justified were black South Africans in thinking that the Truth, Reconciliation and Justice Commission had failed them, particularly in delivering economic justice, which must be the next phase in the post-apartheid project? How was history taught in schools to prepare each group in the society to learn about the past and contribute to the future, who was writing history textbooks and how would South Africa build and maintain sites of memory? One of the reasons which fostered immigration to South Africa was the lack of certain skills among the South African population – what was being done to train the national labour force to fill those vacancies?
The delegation was also asked to inform the Committee about the effective action to combat xenophobia at the legislative, judicial and administrative levels; the eleven national languages in South Africa and how they were distributed; whether the consequences and impact of apartheid were fading in the society; and whether black women or those belonging to ethnic minorities could own land.
Given the history of South Africa and its struggle against racial discrimination, it was important to mention the efforts to recognize the rights of indigenous peoples who had historically been marginalized and discriminated against. What was the level of recognition of indigenous peoples in South Africa and what were the intentions concerning the adoption of the International Labour Organization Convention 169, or the Indigenous and Tribal Peoples Convention? Was there a rise in the enrolment of black people in law schools?
FATIMATA BINTA VICTOIRE DAH, Committee Expert and Rapporteur for South Africa, said that article 5 of the Convention was its backbone and it was surprising to note that there was a delay in ratifying the International Covenant on Economic, Social and Cultural Rights. Human rights treaty bodies were currently undergoing a strengthening process to render them more efficient and effective and to ensure they were all working as parts of the system. Human rights treaty bodies were aware of each other’s work and the concluding observations and recommendations issued to countries, as well as the Universal Periodic Review recommendations. South Africa was very active in the Human Rights Council, said the Country Rapporteur and asked why the request for a visit by the Special Rapporteur on racism had not been granted since 2008.
ANASTASIA CRICKLEY, Committee Chairperson, remarked that the role of the Committee was to support and constructively challenge States on their obligations that they had voluntarily entered into. The Committee also had an obligation to discuss positive discrimination with States parties and in this context, Committee Experts had raised the issue of temporary special measures.
Responses by the Delegation
On the issue of racial classification, the head of the delegation said that when the Dutch had first colonised South Africa, the Khoi and the San peoples had already been in the Cape, while Bantu speaking people had arrived about 250 ad. The Dutch, followed by the English, had arrived and had taken the land, exterminated a number of the San and had later gotten into conflict with the Bantu. They had also brought slaves from Angola, Mozambique and Indonesia. In terms of racial classification, there were whites, coloured or mixed race, Bantu speaking people were regarded as African, and Indians had arrived later. Under the apartheid regime, everyone who had not been white had been discriminated against. Most money was given to white people, less to Indians, even less to coloured and the least to black people. Twenty years after apartheid, the legacy continued. About 80 per cent of the population were African. In terms of delineation between indigenous and non-indigenous peoples, it was important to note that the Khoi, the San and the Bantu speaking people – all of them - had been dispossessed of their land.
Statement by the National Human Rights Institution
South Africa Human Rights Commission acknowledged the tremendous strides taken by the Government to address the legacy of apartheid, particularly racial, sexist and socio-economic imbalances of the past, but noted that high levels of racism continued to plague the society and impacted negatively on nation-building. The Commission continued to receive an exceptionally high number of complaints, the majority of which pertained to race. Migration, the situation of non-nationals and xenophobia received considerable attention within the country and internationally. One of the intended purposes of the Immigration Act was to put in place migration control to ensure the expeditious issuing of residence permits without consuming excessive administrative capacity, but on a practical level, this had translated into an administrative and mechanical based approach to the migration policy. The uncontrolled immigration and the overall poor management of the migration system contributed to the high levels of xenophobia and hate speech against non-nationals in South Africa.
While the Government had released the draft National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance and the Green Paper on International Migration in June 2016, the Commission stressed the importance of expediting legislative processes in this regard and urged the Government to set the timeframe within which the legislation would be finalised. The Commission was concerned about the conditions at the Lindela Repatriation Centre and asked the Committee to urge the Government to address the issue and ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and urgently establish a national preventive mechanism to monitor places such as Lindela Repatriation Centre and other places of detention. The attitude towards non-nationals could not be looked at in isolation and had strong links to the racial tensions which continued to plague sectors of the society. In a country such as South Africa, where racism and racial discrimination were deeply ingrained, the criminalization of racism might have the inadvertent effect of increasing racial tensions amongst the different racial groups and there was a critical need to address the issue with a high degree of sensitivity.
Responses by the Delegation
Responding to questions and comments raised by the Committee Experts, the head of the delegation noted that South Africa had an enormous legislative workload at the moment, with the drafting of the National Action Plan on Combatting Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, the Immigration Law, reform of the Small Claims Court, etc. In order to avoid repeating mistakes of rushing into ratification, it therefore had taken time to ratify the International Covenant on Economic, Social and Cultural Rights. In relation to the domestication of the provisions of the Convention, the State and the Constitution were founded upon the principles of non-racialism and non-sexism.
The equality clause afforded every person the right to equal protection and benefit of the law, and provided legislative and other measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination. South Africa was aware that in its General Recommendation N°32 the Committee had indicated that the notion of fair discrimination should be avoided. However, the Constitution embodied the principles of the Convention in that it provided for special measures to be undertaken for the sole purpose of securing the adequate advancement of human rights and freedoms for certain racial or ethnic groups or individuals. Affirmative action constituted special measures within the meaning of the Convention, and the legislative measures taken in terms of the Employment Equity and Black Economic Empowerment Acts constituted special measures within the meaning of the Convention.
The Constitution recognized that everyone was equal before the law and had the right to equal protection and benefit of the law, and it provided that, to promote the achievement of equality, legislation and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination might be taken.
The Employment Equality Act aimed to ensure the equitable representation of designated groups in all occupational levels in the workforce, and it had been enacted to correct the artificial barriers in the workplace. The numerical targets were not inflexible quotas. The contention that the application of affirmative action excluded the application of merit suggested that persons chosen on affirmative action grounds were not as capable as those who had not been was to “create a false impression”; beneficiaries of affirmative action must be suitably qualified people, and affirmative action measures were not a mere refuge for the mediocre; they were not in place to merely enhance diversity but to ensure the delivery of quality service to the public. A transformation was a process and legislative measures to bring about legislative transformation would affect some individuals adversely, particularly those coming from the previously advantaged groups. The process of transformation must be carried out in accordance with the provisions and spirit of the Constitution.
Special measures were not an exception to the principle of non-discrimination but were integral to its meaning and essential to the Convention project of eliminating racial discrimination and advancing human dignity and effective equality. Special measures did not amount to discrimination when taken for the sole purpose of ensuring equal enjoyment of human rights and fundamental freedoms. In support of the contention that the special measures embodied in the legislation were still necessary, the delegate said that 22 years after the end of the apartheid, the white population was still six times more represented at top levels of management than the majority of the economically active population; the group which represented more than 70 per cent of the South African population held only 14 per cent of the top management positions. Special measures were still needed as they had not achieved their purpose.
At the moment, there were 227,000 asylum claims, and the vast majority were males (170,000), made up of nationals of Ethiopia, Zimbabwe, the Democratic Republic of the Congo, Nigeria, and Pakistan. The majority were economic migrants with rather low technical skills, who were competing in the low-skilled labour market with South Africans, which was creating tensions.
Legislative measures to address gender-based violence included the adoption of the Domestic Violence Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Prevention and Combatting of Trafficking in Persons Act, the Children’s Amendment Act, and others. Since 2013, Sexual Offences Courts were being re-established. In the quest to reduce secondary victimization, 55 Thutuzela Care Centres had been established, which had been recognized as a “world best practice model” in the field of gender violence management and response. The South Africa Police Services had established the Family Violence, Child Protection and Sexual Offences Units in order to provide victim friendly services to victims of gender-based violence.
Gender equality was another issue that South Africa was promoting: the ruling party had reached parity in women’s representation, but because of the lack of gender equality in opposition parties, the representation of women in Parliament was 41 per cent and 43 per cent in the Cabinet.
With regard to race classification, there were four designated groups in the country; classification was based on self-classification. During the apartheid, the State had classified individuals. There was no ethnic classification, people were classified on the basis of the language they spoke; legally 11 languages were recognized although more were spoken in the country. A United Nations report had put the number of San at 6,100 and the number of Khoi at 310,000. The Government had restituted 320,000 hectares of land to the Khoi and San, and had paid out financial compensations to those who choose so.
The questions of land ownership remained a reflection of the inequality that was pervasive in the South African society. As a result of past discriminatory practices, most of the country’s commercial farms were in the hands of the minority white population. The Government had been engaged in a programme to effect land restitution, redistribution and reform, but the administration of restitution programmes faced numerous challenges, including the lack of information and documentation, competing claims, unwillingness of landowners to sell, and high land prices. The focus and the essence of the programme was to reverse the legacy of the 1913 Natives Land legislation. Land remained a critical resource in the construction of an inclusive economy, creation of sustainable livelihoods, eradication of poverty and creation of decent employment in the rural areas.
The Ministry of Rural Development and Land Reform had been created in 2009 and for the first time in its history South Africa had a ministry dedicated to the social and economic development of rural South Africa. The Ministry had been created to speed up the process and to ensure that South Africans living in rural areas enjoyed the same rights and protection as those living in urban areas. The Comprehensive Rural Development Programme aimed at addressing rural poverty through the creation of vibrant, equitable and sustainable rural communities. This would be achieved by facilitating integrated rural development and social cohesion through partnerships with all sectors of society. The most important strategy to pursue in delivering on the Comprehensive Rural Development Programme was agrarian transformation.
Land reform had four pillars, namely the restitution of land rights, redistribution, tenure reform and development. The Green Paper of Land Reform defined three principles underlying land reform, namely deracialising the rural economy, the democratic and equitable allocation and utilisation of land across race, class and gender, and sustained production discipline. The land restitution process was managed by a number of statutes, and by the end of 2012, more than 76,000 out of 79,000 claims received since 1994 had been settled.
South Africa consistently spent 20 per cent of its national budget on basic and higher education, and was looking at establishing the national health insurance scheme which would also improve health service delivery. Since 1994, more than 1,600 clinics had been improved and upgraded and free health care for children under six and for pregnant and breastfeeding women had been introduced in the mid-1990s. The national programme for combatting HIV/AIDS was renowned; there were 6.59 million people living with HIV/AIDS, making it the single biggest cause of premature death and disability in the country. The provision of antiretroviral treatment to an estimated 3.1 million adults and children and the reduction of transmission in pregnancy by almost 90 per cent had turned the tide, resulting in a decline in mortality and an increase in life expectancy from 53 years in 2006 to 61 years in 2012. Adult mortality had declined by more than 50 per cent since its peak in 2003 and 2004, and child mortality had declined by 25 per cent in the period 2009 to 2012.
Small Claims Courts were free, and they levelled the playing field in a sense that they allowed one to institute minor civil claims in a speedy manner without using an attorney. They were presided over by a qualified Commissioner who must be admitted to practice as an advocate or attorney. Sheriffs were officers of the court; that was a statutory position, governed by a Board of Sheriffs and appointed by the Minister of Justice.
Questions from the Experts
FATIMATA BINTA VICTOIRE DAH, Committee Expert and Rapporteur for South Africa, took up the issue of immigration and asked about joint initiatives with countries of the Southern African Development Community and how those were reflected on the ground. The Country Rapporteur welcomed the fact that one fifth of the national budget was allocated to education, which was enormous, and wondered what were then the elements that hampered the progress in the education and transformation of the country’s youth. It was troublesome to hear that South Africa was struggling against all forms of discrimination, not only racial, and the delegation was asked to expand on the legal concept of combatting all forms of discrimination.
Another Expert remarked on the quota system for different population groups which was in place for 20 years and asked whether South Africa was thinking of other policies to overcome apartheid legacies.
What was the status of the criminalization of racism in South Africa, particularly in the light of some opinions that it required a sensitive approach? The Constitutional Court was still dominated by the whites and the Expert asked about what could be done to remove vestiges of apartheid and ensure the change in mentality by those responsible for the implementation of the Constitution.
How was education and training being used in identity formation and in filling the skill gaps that still existed among the population, which was currently being filled by immigrants? How did the Chinese and Asians self-identify and what was their place in racial classification? How successful was South Africa in protecting the vulnerable group of Albinos? The Vision 2063 of the African Union foresaw the creation of a “borderless Africa” and the introduction of the African Passport – how would this affect the treatment in South Africa of foreigners of African origin?
The delegation was asked to inform the Committee about the new tendencies and the rise in racial tensions and how it would affect the political landscape and the context in the country.
Responses by the Delegation
In response, the head of the delegation said that the teaching of history was indeed relevant and important, and that the requested information would be provided to the Committee at a later stage. With regard to the quota system, the head of the delegation stressed that the South African system was not a quota but a target system, it was not intended to last forever, but given the current situation, they were still necessary. As of July 2016, there were nine judges in the Constitutional Court, seven of whom were Africans and two were whites; three judges were women.
Under the apartheid system, there were more racial groups than the current four. The view and the position of racial groups today depended on where their parents came from, and their grandparents, and that was why the elimination of racial and discrimination laws alone was not sufficient to change mind-sets, attitudes and perceptions – one could not run away from those.
Albinism was not a part of the current legislation, but the hate crime legislation which was being currently drafted would mention albinism as ground for protection. Crimes against people with albinism did not frequently occur in South Africa.
In 1994, South Africa had reached a negotiated settlement, which had seen the creation of the Truth and Reconciliation Commission to deal not only with victims of apartheid, but with everyone who had suffered human rights violations. Crimes were not classified according to race, and the passage of new legislation on hate crimes would criminalize hate speech. The so-called xenophobia was against people from the African continent and was fuelled by economic problems. Most of the immigrants were economic immigrants from the African countries. The borders of South Africa were colonial constructs, cutting through areas inhabited by people of the same ethnic origin.
South Africa was discussing the issue of a borderless Africa and an African Passport at the level of the Southern African Development Community, and the position to be adopted by South Africa would be based on a regional decision. The migration flows in southern Africa had always been towards South Africa; the wealth of South Africa had been built on foreign labour, and there was both skilled and unskilled labour migrating to the country. The challenge was to manage the flow of unskilled labour, which was creating tensions within the country and vying for the same jobs as most South Africans. The only route to ensuring the stay in the country for low-skilled economic migrants was through the asylum system, which, as a consequence, had become clogged. The only way that the Government could release the pressure on the asylum system and ensure that economic migrants were dealt with through the immigration regime was through a special dispensation for nationals of the Southern African Development Community, which at the moment was applied to nationals of Zimbabwe and would soon be rolled out to the nationals of Lesotho and Malawi. The current immigration law and policy was completely out of sync with realities, so the Government had initiated the reform process, with the issuing in June 2016 of the Green Paper which was opened for public consultations. It was expected that the new immigration law would be ready for adoption in 2017/2018, and rolled out in 2018/2019.
Further Questions and Answers
A Committee Expert asked the delegation to explain the difference between targets and quotas, and stressed that race should never be used as grounds for discrimination, exclusion or advancement. Nobody should be discriminated against on the basis of their race, including white people or Indian people. The situation of coloured was particular as well, as during apartheid they had been excluded because they were not white enough, and now they were excluded because they were not black enough.
Responding, a delegate remarked that a target was an aspiration, giving as an example the Government targets of gender and disability; no targets had been adopted on race. There were no racially classified schools, but schools which had been previously for whites had significantly better infrastructure simply because more investment in white only schools had been made during the apartheid. The majority of law school graduates were women and African, but the higher one went, the lower the number of women and Africans– this was a perception issue and this was the issue that must be addressed.
There was a debate in South Africa about the necessity for measures to advance the transformation, and the help of the Committee was needed to ensure that South Africa did not promote reverse discrimination or reverse racism. The starting position of the Government was to unify the education system and open up access for everybody, and soon there would be an understanding on the need to improve the quality of education and refine the curriculum so that the child who came out of the system was not preconditioned by a notion of inferiority based on race or gender. This was an enormous task and centuries of social engineering could not be reversed in two decades.
In the next round of questions, Committee Experts noted that perceptions were the real problem in South Africa, perceptions held by the people about other people, and noted that in South Africa, race was equated with skin colour. It was important that measures taken by South Africa to bridge the gap as a result of apartheid were in line with the Convention and the General Recommendation N°32, including in the issues of quotas, in education, housing and employment, among others. The concept of special measures was rather close to affirmative measures, and sometimes those would lead to what some would call “positive discrimination”. Referring to the Chamber of Traditional Leaders, an Expert asked about the legal regime in the country.
Responding, a delegate said that South Africa had adopted an approach based on equality and not race, and that it was not possible to overcome overnight the consequences of 350 years of apartheid and discrimination. The law provided for National and Provincial Houses for Traditional Leaders, which were not law making bodies, but were consulted on all laws which had impact on traditional systems. Traditional Courts were separate from Traditional Houses and existed as customs in many areas of the country. It was difficult to bring them in line with the Constitution, but they were useful in dispersing traditional justice in traditional areas. Disputes about languages were predominantly related to diminished importance of Afrikaans, which used to be one of the two official languages, and now was one of eleven.
Concluding Remarks
FATIMATA BINTA VICTOIRE DAH, Committee Expert and Rapporteur for South Africa, thanked the delegation and the representative of the South African Human Rights Commission. The concluding observations would represent the opinion of the entire Committee, and would examine strengths and weaknesses of some of the measures taken by South Africa to implement the provisions of the Convention. South Africa should strive to accelerate the transformation, ensure that the young generations lived the ideal of post-apartheid, and avoid the threat of a cultural revolution.
JOHN JEFFERY, Deputy Minister, Department of Justice and Constitutional Development of South Africa, provided information on judicial appointments and said that South Africa did not follow quotas blindly. South Africa had indeed come a long way, but outlawing discrimination in 1994 had not been enough. Stressing the need to address mind-sets, Mr. Jeffery said that there was still a long way to go.
ANASTASIA CRICKLEY, Committee Chairperson, encouraged the engagement of South Africa with a range of treaty bodies as they could, in very practical ways, help the clearly stated intention to progressively realize the rights of all who were part of South Africa.
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