Human rights in South Africa

Human rights in South Africa are protected under the constitution. The 1998 Human Rights report by Myles Nadioo noted that the government generally respected the rights of the citizens; however, there were concerns over the use of force by law enforcement, legal proceedings and discrimination.^[1] The Human Rights Commission is mandated by the South African Constitution and the Human Rights Commission Act of 1994, to monitor, both pro-actively and by way of complaints brought before it, violations of human rights and seeking redress for such violations. It also has an educational role.^[2]

Apartheid era

Further information: South Africa under apartheid

Apartheid was a system of segregation and discrimination implemented by a White minority onto the Black majority.^[3] For example, Blacks were not allowed to buy land outside of land reserves despite being the indigenous population.^[4] Many of South Africa's anti-apartheid laws have been enacted while keeping in mind that what is seen by the international community, human rights organisations, and the Black majority in the country as the social and legal injustices associated with apartheid, and its anti-apartheid message has been hailed as an exemplary face of a Sub-Saharan nation.^[5]

Education rights

The South African government has legislated for equal education throughout the country.^[6] This legislation includes the White Paper on Education and Training 1995 and the South African Schools Act, Act 84 of 1996.^[6] Nevertheless, there have been issues in the implementation of these laws, and according to a 2020 report by Amnesty International, South Africa has one of the most unequal educational systems in the world, with the widest gap between the test scores of the top 20% of schools and the remaining 80%.^[6][7] The South African government tends to focus primarily on the quality of higher education.^[6] Additionally, there is not much racial integration in state schools.^[8] Though laws allow for integration, many schools remain predominantly one race.^[8] Encouragingly, the number of students completing Grade 12 has significantly increased in recent years, going from 3.7 million South Africans aged 15 and over in 1996 to 11.6 million in 2016.^[9]

Rural schools

Most of the Education in South Africa comes from rural schools. In fact, approximately 79% of Black South Africans live in rural communities.^[10] However, the government has neglected the quality of education in these rural areas.^[10] Issues with rural schooling include: poor facilities, lack of clean water, lack of resources, and unmotivated teachers.^[10] Considering poor facilities, some schools are not structurally stable and are at risk of collapse, with some schools even lacking electricity.^[10] Most schools with more than 500 children lack proper sanitation for toilets while some schools don't have toilets at all.^[10] Furthermore, many rural schools are in remote areas without direct access to clean water.^[10] Water is generally kilometers away and unclean because animals bathe and drink in it.^[10] This lack of water is a particular issue in the daytime when the temperature is highest.^[10] The remoteness of these rural schools is also a particular problem because they are quite distant from pupils' homes.^[10] And, many schools do not remedy this issue with transport.^[10] Additionally, many schools lack the needed books and supplies for learning.^[10] In June 2010, the Government Gazette recognised that these unfavorable learning environments increase rates of absenteeism of teachers and dropout rates of students.^[10] Some students do not have enough food to eat and are hungry during school.^[11] This hunger causes a lack on concentration and makes learning environments less favorable.^[11]

Rights for disabled children

See also: Disability in South Africa

Though South Africa ratified the Convention on the Rights of Persons with Disabilities in 2007, children with disabilities still do not have equal access to education.^[12] In many situations, a state school is able to determine which students are able to enroll and the school may simply reject a disabled child without any consequences.^[12] In cases where the student is able to enroll in a public school, a school may lack the resources necessary to effectively teach children with disabilities.^[12] Additionally, children with disabilities in state schools are forced to pay fees—such as for an assistant—that other students are not required to pay.^[12] South Africa has schools that cater for students with disabilities, but these schools are limited in number and require fees to be paid.^[12] The limited number of schools forces children to either board or use costly transport.^[12] In 2000, the UN Committee on the Rights of the Child was specifically concerned with the lack of implementation of South Africa's agreement to guarantee free primary education.^[12] South Africa still struggles to provide free primary education for all.^[12] Additionally, many disabled students are not able to access quality education because they are on waiting lists for schools that cater to students with special needs.^[12] For example, in 2015, there are approximately 5,552 children with disabilities on waiting lists.^[12]

Primary School in South Africa

Political rights

See also: Political repression in post-Apartheid South Africa

South Africa has a liberal constitution that protects all basic political freedoms. However, there have been a number of incidents of political repression as well as threats of future repression in violation of this constitution leading some analysts and civil society organisations to conclude that there is or could be a new climate of political repression^[13][14] or a decline in political tolerance.^[15]

Political patronage is a significant aspect in South African politics.^[16] However, this patronage infringes on the rights of the people, especially those in poverty.^[16] 40% of South Africans are dependent on the state to supply necessities.^[16] This dependence on the state lessens the autonomy of South Africans in need of this assistance.^[16] These necessities are supplied in the form of grants, which require governmental documents to obtain.^[16] Consequently, bureaucracy plays a major role in an individual's ability to obtain a grant and thus obtain necessities.^[16] Politicians gain substituents based on material promises.^[16] If the politicians fulfill these promises, often the recipients are only those who supported the politicians.^[16] Essentially, voters dependence on the state precludes their ability to vote based on ideological platforms.^[16] This phenomenon does not align with the democratic principles of South Africa.

Welfare

As of 2021, roughly 30% of South Africans (18 million out of the country's population of 60 million) received government grants.^[17] This number increased sharply during the coronavirus pandemic; in October 2020, more than 70% of South Africans were living in a household receiving government support.^[18]

The 1997 "White Paper on Social Welfare" outlines South Africa's social welfare policy.^[19] The White Paper on Social Welfare focuses on providing South Africans with opportunities for increased autonomy.^[19] For example, White Paper on Social Welfare stipulates the provision of public works projects.^[19] The White Paper also emphasises the significance of non-state welfare organisations in providing welfare.^[19] Such organisations include non-governmental organisations (NGO's) and religious organisations.^[19] Additionally, the White Paper focuses on the government providing welfare specifically to families.^[19] But, the White Paper has relatively fewer provisions for the elderly.^[19] The government expects families to take responsibility for caring their elderly relatives, partly because of cultural values.^[19] The White Paper also covered child support grants and refrained from stereotyping concerning the gender roles in a family. For instance, the White Paper did not specifically refer to the male in a household as the "breadwinner".^[19] Racial disparities in the cities of South Africa still exist, despite the country's having long since ended apartheid. Many black South Africans still struggle to obtain basic needs such as housing, living in under-maintained townships, while many urban white South Africans reside in gated communities with a heavy presence of private security. The Sowetan Live has recently reported that "...indeed the city has contributed to" building "4,000 social homes in 11 districts" with more than 350,000 residents still in need of immediate housing relief.^[20]

Health

Main article: Healthcare in South Africa

The Chris Hani Baragwanath Hospital, Soweto

South Africa has a plethora of infectious disease cases. Malaria is major cause of death because of a lack of resources to treat patients.^[21] Additionally, the water is dirty with human and industrial waste which contributes to the spread of disease.^[21] Many deaths are caused by poverty rather than a lack of cures for a disease.^[21] Poverty is a major reason for death because poor families are not able to afford proper health services and hospitals are not able to buy enough supplies.^[21] Additionally, people living in South Africa who are illegal immigrants lack resources for health care that is non-emergency.^[22] For example, many of the people living in the Hillbrow Health Precinct are not legal and have poor health resources. Specifically, some hospital buildings were built before World War II.^[22] Furthermore, the Hillbrow community has high rates of Sexually Transmitted Diseases.^[22]

East Rand Hospital. There are not enough beds for the patients.

HIV/AIDS

Main article: HIV/AIDS in South Africa

South Africa has the largest number of people living with HIV/AIDS in the world, 7.5 million as of 2021.^[23] It was first detected in 1982.^[21] The disease was first detected in homosexuals, but it rapidly spread to heterosexuals.^[21] Because of the rapid spread, the government tried to step in and help.^[21] However, South Africa was in the last years of apartheid during the time when HIV/AIDS was becoming an epidemic.^[21] Thus, the South African government had great difficulty mitigating the effect of the epidemic.^[21] For instance, because of the desegregation of schools and the controversy surrounding that, the government did not focus on providing quality sex education that specifically focused on HIV/AIDS.^[21] Additionally, the local and federal governments had disagreements about the allocation of funds for HIV/AIDS prevention, thus causing inefficiency and gridlock.^[21] Also, some of the money allocated to HIV/AIDS prevention was misused.^[21] For example, a musical called Sarafina II was projected to increase awareness about AIDS and AIDS prevention.^[21][24] However, the play was not clear and did not significantly help with sex education.^[21] Much of the HIV/AIDS treatment and progress have been funded by non-profit organizations such as WHO and UNAIDS.^[21]

Possible causes

There are multiple theories about the causes for the HIV/AIDS epidemic in South Africa.^[21] Some theorise that migrant workers were a source of the proliferation of the disease.^[21] The migrant workers usually would not see their wives and families for months, so they had extramarital sexual intercourse in the cities.^[21] Then, later during the holidays, husbands would return home and unknowingly infect their wives with the disease.^[21] Another theory is that the culture makes South Africa more vulnerable to the epidemic.^[21] For example, male circumcision at birth reduces the risk of the child getting HIV/AIDS.^[21] However, many South Africans do not do this procedure because it is not traditional to do circumcision at birth.^[21]

Additionally, a lack of quality healthcare can exacerbate the epidemic.^[22] There is quite a disparity between public and private healthcare.^[22] Overall, public hospitals provide worse care than private hospitals do.^[22] Public hospitals are generally overcrowded and understaffed.^[22] In fact, 82% of South Africans are cared for by 27% of South Africa's general physicians.^[22] The difference in these percentages is caused by general physicians moving to the private healthcare sector and by brain drain.^[22] Brain drain is when professionals emigrate from their home country to work elsewhere.^[22] Also, the disparity is caused by the fact that private hospitals have more resources and funds than public hospitals do because of the higher fees at private hospitals.^[22]

Deportation of foreigners

The South African government has been criticised by Human Rights Watch for deporting hundreds of thousands of Zimbabwean refugees and treating victims of political violence as economic migrants. By sending refugees back to persecution, Human Rights Watch has asserted that South Africa is violating the refugee convention and international law.^[25]

On 17 September 2020, Human Rights Watch published a 64-page report detailing the widespread xenophobic violence in South Africa. The report also contained video footage and witness testimony. Despite the March 2019 adoption of a government action plan to combat xenophobia, African and Asian foreigners in the country suffer routine harassment and abuse.^[26]

Sexual and LGBT rights

Main articles: LGBT rights in South Africa and Sexual violence in South Africa

Sexism

South Africa has had some issues concerning gender inequality in court cases.^[27] A prominent example is that of Jacob Zuma's Rape Trial in 2006.^[27] "Khwezi, a female AIDS activist, brought Zuma to court for raping her.^[27] As his defense, Zuma claimed that he could "have liaisons with women" quite easily, so he asserted that he would not have raped Khwezi.^[27] Zuma also used Zulu culture as support for his defense.^[27] Some of Zuma's supporters gathered outside of the courthouse and burned photographs of Khewzi and yelled phrases like "Burn the Bitch.^[27] " These actions caused gender activists to protest against sexism and to raise concern about the fact that the judge allowed the court to admit evidence about Khwezi's sexual history, but did not admit evidence from Zuma's sexual history.^[27] Many people felt that Zuma went against the modern South African liberal democracy because he represented patriarchy at a relative extreme.^[27]

Rape

in 2018/19, South African police recorded 41,583 rapes, though experts have warned that it is difficult to assess how many more cases have not been reported.^[28][29] A 2009 survey found one in four South African men admitted to raping someone^[30] and another survey found one in three women out of 4000 surveyed women said they had been raped in the past year.^[31]

Rapes are also perpetrated by children (some as young as ten).^[32] Child and baby rape incidences are some of the highest in the world.^[33] A number of high-profile baby rapes that included extensive reconstructive surgery to rebuild urinary, genital, abdominal, or tracheal systems have appeared.

Same-sex marriage

The Civil Union Act 17 of 2006 legalized same-sex marriage in South Africa.^[34] It was a direct response to the Minister of Home Affairs v Fourie case, where the Constitutional Court declared the lack of legal recognition of same-sex relationships unconstitutional and gave Parliament a year to remedy the situation.^[34]

South Africa's post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation. South Africa was the first country in Africa, and the fifth in the world, to legalise same-sex marriage.^[35]

Intersex rights

Main article: Intersex rights in South Africa

Intersex people in South Africa have some of the same rights as other people, but with significant gaps in protection from non-consensual cosmetic medical interventions and protection from discrimination.^[36] The country was the first to explicitly include intersex people in anti-discrimination law.^[37]

Labour rights

Legal

South Africa has implicit and explicit labour regulations.^[38] Its implicit labour regulations are stated in the Constitution and set the boundaries for explicit regulations.^[38] Explicit regulations are set by employers and are specific to each job.^[38] On the other hand, implicit regulations are the Labour Relations Act 66 of 1995, the Basic Conditions of Employment Act 75 of 1997, the New Employment Equity Act 55 of 1998, and the Skills Development Act 97 of 1998—each with subsequent amendments.^[38] The Labour Relations Act 66 allows workers to create unions and collectively bargain.^[39] Over the years, the number of unions in South Africa have declined.^[38] Also, there are fewer federation-associated trade unions and more independent trade unions in South Africa today.^[38] The Basic Conditions of Employment Act 75 has regulations concerning working hours, leave, and termination.^[40] The New Employment Equity Act 55 was created to lessen discrimination. It also provides parameters for affirmative action.^[41] The Skills Development Act 97 promotes worker productivity and competitiveness in the market.^[42]

Unions

South Africa has some labour related issues. One aspect is the formation of unions.^[43] In fact, 22% of South African workers are union members.^[3] In 2012, the Marikana Massacre occurred.^[43] The Marikana Massacre was the killing of 44 platinum miners who were on strike to earn increased wages.^[43] 78 people were wounded and 259 were arrested.^[38] One reason for this brutality was that the strike was not protected.^[38] Additionally, poorly paid farm workers have been striking.^[43] One example is of the Western Cape Farm worker strike in which the workers were mostly female.^[38] The strike resulted in 3 deaths, but the workers got a 52% increase in pay.^[38] This strike was also unprotected.^[38] There was another platinum mining strike in 2014, but it differed from the 2012 platinum mining strike because it was protected.^[38] The protection prevented police brutality.^[38] In fact, this strike lasted for five months.^[38] Consequently, the world's platinum production decreased by 40% because of the lack of labour.^[38] The worker's wages did increase as a result but, the workers also suffered losses because of the "no work, no pay" policy in South Africa.^[38] Workers who strike are generally strongly motivated, even with protected strikes, because there is much risk of loss.^[38]

Foreign

The union membership rate in South Africa is one of the highest in the world.^[3] Furthermore, the risk of union conflict is a deterrent for foreign companies.^[3] South Africa is receptive to foreign companies because they create jobs.^[3] The unemployment rate in South Africa is approximately 30%.^[3] The government encourages foreign and disadvantaged domestic company partnership by giving benefits to foreign companies.^[3] Also, the South African government requires that businesses with government contracts donate to social programs.^[3] Also, South Africa has high numbers of migrant workers from rural areas throughout Africa, which gives foreign companies a large labour force to choose from.^[3]

Historical situation

The following chart shows South Africa's ratings since 1972 in the Freedom in the World reports, published annually by Freedom House. A rating of 1 is "free"; 7, "not free".^[44]1

Historical ratings

Year Political Rights Civil Liberties Status Head of Government^2 1972 5 6 Not Free Balthazar Johannes Vorster 1973 4 5 Partly Free Balthazar Johannes Vorster 1974 4 5 Partly Free Balthazar Johannes Vorster 1975 4 5 Partly Free Balthazar Johannes Vorster 1976 4 5 Partly Free Balthazar Johannes Vorster 1977 5 6 Not Free Balthazar Johannes Vorster 1978 5 6 Not Free Balthazar Johannes Vorster 1979 5 6 Not Free Pieter Willem Botha 1980 5 6 Not Free Pieter Willem Botha 1981 5 6 Not Free Pieter Willem Botha 1982^3 5 6 Not Free Pieter Willem Botha 1983 5 6 Not Free Pieter Willem Botha 1984 5 6 Not Free Pieter Willem Botha 1985 5 6 Not Free Pieter Willem Botha 1986 5 6 Not Free Pieter Willem Botha 1987 5 6 Not Free Pieter Willem Botha 1988 5 6 Not Free Pieter Willem Botha 1989 6 5 Not Free Pieter Willem Botha 1990 5 4 Partly Free Frederik Willem de Klerk 1991 5 4 Partly Free Frederik Willem de Klerk 1992 5 4 Partly Free Frederik Willem de Klerk 1993 5 4 Partly Free Frederik Willem de Klerk 1994 2 3 Free Frederik Willem de Klerk 1995 1 2 Free Nelson Mandela 1996 1 2 Free Nelson Mandela 1997 1 2 Free Nelson Mandela 1998 1 2 Free Nelson Mandela 1999 1 2 Free Nelson Mandela 2000 1 2 Free Thabo Mvuyelwa Mbeki 2001 1 2 Free Thabo Mvuyelwa Mbeki 2002 1 2 Free Thabo Mvuyelwa Mbeki 2003 1 2 Free Thabo Mvuyelwa Mbeki 2004 1 2 Free Thabo Mvuyelwa Mbeki 2005 1 2 Free Thabo Mvuyelwa Mbeki 2006 2 2 Free Thabo Mvuyelwa Mbeki 2007 2 2 Free Thabo Mvuyelwa Mbeki 2008 2 2 Free Thabo Mvuyelwa Mbeki 2009 2 2 Free Kgalema Petrus Motlanthe 2010 2 2 Free Jacob Gedleyihlekisa Zuma 2011 2 2 Free Jacob Gedleyihlekisa Zuma 2012 2 2 Free Jacob Gedleyihlekisa Zuma 2013 2 2 Free Jacob Gedleyihlekisa Zuma 2014 2 2 Free Jacob Gedleyihlekisa Zuma 2015 2 2 Free Jacob Gedleyihlekisa Zuma 2016 2 2 Free Jacob Gedleyihlekisa Zuma 2017 2 2 Free Jacob Gedleyihlekisa Zuma 2018 2 2 Free Jacob Gedleyihlekisa Zuma 2019 2 2 Free Cyril Ramaphosa 2020 2 2 Free Cyril Ramaphosa 2021 2 2 Free Cyril Ramaphosa 2022 2 2 Free Cyril Ramaphosa 2023 2 2 Free Cyril Ramaphosa

International treaties

South Africa's stances on international human rights treaties are as follows:

Treaty	Organisation	Introduced	Signed	Ratified
Convention on the Prevention and Punishment of the Crime of Genocide[45]	United Nations	1948	-	1998
International Convention on the Elimination of All Forms of Racial Discrimination[46]	United Nations	1966	-	1998
International Covenant on Economic, Social and Cultural Rights[47]	United Nations	1966	1994	-
International Covenant on Civil and Political Rights[48]	United Nations	1966	1994	1998
First Optional Protocol to the International Covenant on Civil and Political Rights[49]	United Nations	1966	-	2002
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity[50]	United Nations	1968	-	-
International Convention on the Suppression and Punishment of the Crime of Apartheid[51]	United Nations	1973	-	-
Convention on the Elimination of All Forms of Discrimination against Women[52]	United Nations	1979	1993	1995
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[53]	United Nations	1984	1993	1998
Convention on the Rights of the Child[54]	United Nations	1989	1993	1995
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty[55]	United Nations	1989	-	2002
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[56]	United Nations	1990	-	-
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women[57]	United Nations	1999	-	2005
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict[58]	United Nations	2000	2002	2009
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography[59]	United Nations	2000	-	2003
Convention on the Rights of Persons with Disabilities[60]	United Nations	2006	2007	2007
Optional Protocol to the Convention on the Rights of Persons with Disabilities[61]	United Nations	2006	2007	2007
International Convention for the Protection of All Persons from Enforced Disappearance[62]	United Nations	2006	-	-
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights[63]	United Nations	2008	-	-
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure[64]	United Nations	2011	-	-

See also

• Human trafficking in South Africa
• In re Dube (1979)
• Prizm Project

Notes

1.^ Note that the "Year" signifies the "Year covered". Therefore the information for the year marked 2008 is from the report published in 2009, and so on.

2.^ As of 1 January. Until 1994 the Head of Government was the Prime Minister. From 1984 to 1994 it was the State President, and since then has been the President.

3.^ The 1982 report covers the year 1981 and the first half of 1982, and the following 1984 report covers the second half of 1982 and the whole of 1983. In the interest of simplicity, these two aberrant "year and a half" reports have been split into three-year-long reports through extrapolation.

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External links

• 2012 Annual Report, by Amnesty International
• Freedom in the World 2011 Report, by Freedom House
• World Report 2012, by Human Rights Watch
• International Human Rights Administration Archived 6 June 2014 at the Wayback Machine