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Transforming Society

Securing Rights

Restoring Dignity

Equality

Equality and Racism is one of the eight focus areas identified by the South African Human Rights Commission in order to effectively fulfil its Constitutional mandate of promoting, protecting and monitoring the realisation of human rights in South Africa.

The constitutionally entranced right to equality and the equal protection and benefit of the law must be understood against the country’s history of inequality, racism, homophobia and other related intolerances. It is for this reason therefore that, since its inception, the Commission has been concerned with the eradication of inequality and unfair discrimination, particularly based on race, gender, sex, disability, and sexual orientation. The Commission’s continued strategic focus on the right to equality has been informed by the increase in equality-related complaints lodged with the Commission.

Since 2012, the Commission has seen a steady increase in the numbers of equality related human rights violations.  In the 2012/2013 financial year, equality related complaints accounted for 10% or 511 of all complaints received, in the 2013/2014 financial year the figure increased to 11%, and in the 2015/2016 financial year, equality related complaints constituted the highest number of complaints received by the Commission, totalling 16% or 716 of all complaints received. To date, the highest number of complaints received by the Commission are equality-related human rights complaints.

Of all the equality related complaints received in the last few years, complaints relating to unfair discrimination based on race have consistently been the highest complaints received by the Commission.
Strategic Focus Area: Equality


B.    The Human Rights Commission’s work on Equality and Social Cohesion

The complaints received by the Commission highlight systemic challenges relating to the achievement of equality, particularly in relation to race. Complaints relating to race accounted for the highest number of equality-related complaints received by the Commission in the last financial year.

The work of the Equality and Social Cohesion portfolio is informed by the Constitutional mandate of the Commission, relevant national legislation, and applicable international and regional instruments.

In order to respond to these challenges, the Commission, through the Office of the Deputy Chairperson of the Commission and its various business units, has undertaken various activities and initiatives to address the issue of unfair discrimination, particularly discrimination on the basis of race, sex, gender and sexual orientation. In this regard, the Commission regularly receives complaints in relation to these matters and issues comprehensive investigative reports with findings and recommendations on how to address these issues. The Commission also releases an State of Human Rights Report on an annual basis, which, in part, analyses the extent to which unfair discrimination persist in South Africa and makes recommendations on how to address such unfair discrimination. In March 2019, the Commission also hosted a dialogue on contested “Coloured” identities. The Commission had recognised the need to interrogate the claims of socio-economic exclusion and neglect of the “coloured” community in Gauteng and the Western Cape; to investigate the continued relevance of racial markers separating these groups and the implications on social identities for these community members; to identify key priority areas in promoting social cohesion in the affected communities and finally to make recommendations to the relevant stakeholders with the aim of promoting social cohesion and equitable access to resources.

1.    Co-operation with government departments and other key stakeholders

The Commission regularly engages government departments, other Chapter 9 institutions, civil society and other stakeholders on issues relating to equality and racism.
In March 2016, the Commission co-hosted the continent’s first Regional Seminar on finding practical solutions to end discrimination and violence based on sexual orientation and gender identity and expression. The Seminar was a joint initiative of the Commission, the Department of Justice and Constitutional Development, the Department of International Relations and Cooperation, and civil society organizations. An important outcome of the conference is the Declaration adopted at the Seminar, which calls upon governments to take necessary measures to protect the rights of Lesbian, Gays, Bi-sexual, Transgender and Intersex persons.

In November 2017, the Commission hosted the Network for African National Human Rights Institutions (NANHRI) In-Country Meeting on Sexual Orientation, Gender Identity and Expression (SOGIE) which will focus on discrimination, education and SOGIE-based violence.

The Chairperson of the Commission is also a standing member of the Equality Review Committee, a Committee established in terms of section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act). The mandate of the committee is to advise the Minister of Justice on the operation of the Equality Act and other legislation, which have an effect on equality. Through its participation in this Committee, the Commission is enabled to influence and inform policies in the area of equality. In the execution of its obligation in terms of the South African Human Rights Commission Act, the SAHRC engages parliament on a range of issues relating to the observance of human rights including development and reform of equality related laws and policies.

2.    Section 11 Committees

In conducting its work on the Equality and Social Cohesion, the Commission relies on the advice and recommendations from the Equality Advisory Committee, a committee which has been established in terms of section 11 of the SAHRC Act, to advise the Commission on all equality and related matters. Section 11 Committees are advisory boards comprised of experts from different disciplines and institutions. Section 11 Committees provide critical input and expertise in the execution of the Commission’s mandate and guidance on strategic issues impacting on the work of the Commission from an external, independent and critical point of view.

3.    Complaints

Since 2012, the Commission has seen a steady increase in the numbers of equality related human rights violations. Since 2012, the highest number of human rights’ violation reported to the Commission was in the category of equality rights’ violation. Between 2014/15 and 2015/16, equality complaints jumped from 493 to 749, representing an increase of 34%. The number dropped marginally in 2016/17 to 705. Endemic inequality in South Africa results in the negation and violation of numerous other basic rights guarantees within the Bill of Rights. The Commission, through its Provincial Offices and its Legal Services Unit continuously secure redress on complaints of human rights violations.



4.    Own-initiative Investigations and Investigative Hearings

In addition to investigating complaints lodged with provincial offices, the Commission also initiates its own investigations into equality-related human rights abuses such as race, sexual orientation, sex, and gender, among others.  

In February 2017, the Commission hosted a two day National Investigative Hearing on racial discrimination in social media where policymakers, researchers and civil society organisations made submissions. This was following the Commission’s receipt of
505 race-related complaints during the 2015/2016 financial year. Despite the significant achievements over the past 23 years of democracy, deep inequalities and unfair discrimination remain a serious concern. Social media in South Africa was in the spotlight as many incidents are being highly publicised and point to the evolving challenges in addressing racism in contemporary South Africa.

The hearing discussed allegations of racism that arise on social media, and build on the Commission’s approach to issues of racial discrimination and social cohesion; with the purpose of arriving at an understanding of what constitutes racism in the context of social media, who should be held accountable, and to what extent.

In 2016, the Commission convened a National Hearing on transformation in institutions of higher learning in South Africa. The decision was taken following the receipt of a number of complaints on transformation issues in universities, which in the Commission’s view, necessitated a holistic examination of transformation in institutions of higher learning in South Africa. The Report encompasses a record of the systemic challenges that hinder the attainment of substantive transformation in higher education and therefore constitutes an important tool for assessing progress in attaining substantive transformation in this sector. Moreover, the recommendations contained in this Report may be used to contribute to the transformation processes currently underway in many of our public universities. Since the launch of this report, the Commission has used the report in all its engagement related to transformation in public universities, and #FeesMustFall.

In March 2017, the Seshego Magistrate’s Court ruled in our favour in a case brought by the Commission and ordered the Limpopo Department of Education to pay R60,000 in personal compensation to Nare Mphela, a transgender woman from Ga-Matlala village. The issue started when Mphela began facing severe discrimination for her gender identity from the school principal who, according to her, instructed her friends to stop referring to her as their “sister”; told them to provoke and harass her in the school toilets; as well as to grab her crotch “and find out what is there”.

On 18 August 2017, in a ruling in favour of the Commission and its other stakeholders, the South Gauteng High Court (sitting as the Equality Court) ruled that a column penned by journalist Jon Qwelane which compared homosexual unions to bestiality amounted to hate speech as defined in section 10 of PEPUDA and dismissed Qwelane’s constitutional challenge to section 10 of PEPUDA.

5.    Reports

In addition to the Equality Reports above, the Commission also publishes Reports on Findings of Hearings, such as the 2016 Report on Transformation of Institutions of Higher Learning in South Africa, as well as the 2017 Discrimination in the Workplace Report.

In February 2018, the Commission published and launched a thematic discussion paper on SOGIE-based violence and discrimination in South Africa. The paper highlighted key challenges experienced by LGBTIQ persons in their interaction with the justice system in South Africa, including secondary victimisation, access to justice for survivors of SOGIE-based violence and discrimination, legal literacy particularly for queer persons, and the need for disaggregated data.


6.    International & Regional Conferences

The Commission attends regional and international conferences and other domestic platforms to ensure that it keeps up with national and international developments with respect to Equality generally. The Commission’s attendance is also intended to foster information sharing and collaboration with other institutions and the development of regional legislation on equality and non-discrimination.

Recent engagements include:
•    PAI LGBTI Conference May 2016 (PAI is the largest democratically organized LGBTI federation in Africa working on human rights and equality for LGBTI Johannesburg, South Africa)
•    The Glion Human Rights Dialogue 2016 (‘Glion III’) in Vevey, Switzerland from 3-4 May 2016. The Dialogue provided a platform for representatives of States, OHCHR, the wider UN, and other key parts of the human rights system such as Special Procedure mandate-holders, members of Treaty Bodies, and NGOs, to offer their assessment of the key challenges they face and their vision of how to best overcome them to strengthen the Council and the wider UN human rights system.
•    Department of International Relations and Co-operation and the Ugandan Ministry of Relief, Disaster Preparedness and Refugees, who conducted a study tour to South Africa to learn about the rights of asylum seekers in South Africa. 25 May to 3 June 2016.  
•    International Federation of Human Rights (FIDH) – meeting with FIDH, Lawyers for Human Rights, Ditshwanelo (Botswana) and ZimRights (Zimbabwe) to share FIDH’s plans for 2016 National Congress.
•    The Cape Higher Education Consortium (CHEC) on Transformation in Higher Education
•    Attendance and keynote speaker at the opening of 2016 UNDP Annual Meeting on the Rule of Law in New York in June 2016.
•    Chairperson of the Equality Review Committee of the Department of Justice’s campaign to raise awareness of Equality Courts.
•    Chaired Hearings at Pan African ILGA Conference in South Africa 2016.
•    Attended and participated at the 90th session of the Committee on the Elimination of Racial Discrimination (CERD) in Geneva.
•    Attended and participated in the High Level NHRI related meeting in representation of GANHRI in Geneva in 2016
•    Participation in Equality Court Awareness Campaign in Nelspruit and Piet Retief
•    Regional Seminar on finding practical solutions to end discrimination and violence based on sexual orientation and gender identity and expression – March 2016
•    In-Country Meeting on Sexual Orientation, Gender Identity and Expression 2017 November
•    63rd Ordinary Session of the African Commission on Human and People’s Rights – October 2018
•    Ministerial Dialogue on The Recognition of Marriages in South Africa - Department of Home Affairs
•    4th Regional Capacity Strengthening Convening for NHRIs
•    Workshop on SOGIE-related Complaints Handling, Investigations and Documentation (CID) in Entebbe, Uganda from July 23 – 25, 2019
•    Gauteng Premier’s Roundtable Discussion On Sex Work – November 2018
•    High Level NHRI Convening On SOGI & Human Rights  To Be Held In Accra, Ghana On November 19 – 21, 2018
•    Colloquium on HE Transformation on the 5th of November 2018
•    145 Years Celebration: History Lecture And Book Launch: Friday 7 September 2018 At UNISA

7.    Advocacy and public education

The Commission regularly conducts advocacy initiatives and public education on issues pertaining to equality non-discrimination, SOGIE-based and/or Gender-based violence. These include acting as amicus curiae (friend of the court), awareness raising through education, training, public information campaigns, seminars, conferences, dialogues, roundtables, web publishing, and use of social media platforms. The Commission also raises awareness and promotes equality and non-discrimination with media releases and public engagements on human rights, amongst others.  
Following consultation with stakeholders in February 2018, the SAHRC has developed advocacy material that are aimed at promoting Sexual Orientation, Gender Identity and Expression (SOGIE) rights; as well as reduce stigma, discrimination and secondary victimization.
On the 21st March 2018, (South Africa’s national Human Rights Day) the Commission teamed up with Jozi Cats Rugby Club, the first gay and inclusive competitive rugby team in Africa. Together with Jozi Cats, the Commission participated in an inclusive tag rugby tournament as well as an exhibition, full-contact match as part of its advocacy and awareness around the protection, respect and promotion of SOGIE rights. The tournament and the match were intended to raise awareness of inequality on and off the rugby field, and to advocate and educate against homophobia and discrimination based on SOGIE.
Rugby was deliberately used as the vehicle for this advocacy initiative, since the South African rugby environment can be intimidating and even hostile towards LGBTIQ participants. Perhaps as evidence of this, it is noted that there have been no openly gay rugby players or officials in high level rugby in the country to date. The participation of Jozi Cats in formal rugby structures can therefore play a role in reducing damaging stereotypes, encouraging greater participation of LGBTIQ persons in rugby and fostering goodwill in the sport, which can reduce discrimination in the future.”
In October 2019, The Commission will host a stakeholder dialogue relating to racial tensions between Indian and black Africans. The Commission has recognised the need to:

•    Enquire into the racial tensions between Indian and Black Africans that can be traced back to the 1949 riots;
•    enquire into the continued relevance of racial markers separating these groups and the implications on social identities for these community members;
•    identify key priority areas in promoting social cohesion in the affected communities; and
•    to craft a strategic and informed way-forward with the aim of promoting social cohesion and equitable access to resources.

The SAHRC aims to gain a better understanding of the complex questions involved, and to gain as to what institutions like the SAHRC can do - which will enable it to strategically discharge its Constitutional mandate in this regard.

The Office of the Deputy Chairperson will in August 2018 take part in a Diversity and Inclusion conference with a particular focus on achieving LGBTIQ diversity and inclusion in the workplace from a business and human rights perspective.
Some of the questions that will be discussed include the meaning of inclusion of LGBTIQ persons in the workplace, having SOGIE protections in company or institutional policies, monitoring and evaluating policies and practices to ensure diversity management is working and workplace harassment and bullying. The workshop will target a range of corporate stakeholders including CEOs, Human Resource Employment Equity and Diversity and Inclusion Managers and Practitioners.
The SAHRC’s presentation here will build on its 2017 report on Unfair Discrimination in the Workplace Report, which includes unfair discrimination against LGBTIQ persons, as well as its work on business and human rights. The Office of the Deputy Chairperson is teaming up with the Gay and Lesbian Memory in Action (GALA) – a centre for LGBTIQ culture and education in South Africa – in its presentation.


8.    Provincial Visits

The Office of the Deputy Chairperson conducts Provincial Visits in order to promote the work of the Commission, particularly in the area of socio-economic rights and social cohesion in the provinces, and to assess the state of service delivery and accessibility of healthcare services in the province. Provincial visits also seek to strengthen relations between the SAHRC and Provincial Legislatures, Municipalities and Provincial Government Departments, labour federations, community members affected by alleged human rights abuses, and to follow up on compliance with Commission findings and court judgments.
 
9.    Domestic Legislation, International and Regional Frameworks

The Commission’s work on the strategic focus area of equality and racism is underpinned by the constitutional imperative of achieving substantive equality and non-discrimination.

Section 1 of the Constitution of the Republic of South Africa, 1996 identifies the achievement of equality and the creation of a non-racial and non-sexist society as one of the founding values of our constitutional democracy. While section 9 of the Constitution guarantees the right of every person not to be unfairly discriminated against, directly or indirectly, on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origins, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth. Section 9 of the Constitution further provides that national legislation should be passed to prevent or prohibit unfair discrimination.

PUPUDA which further prohibits unfair discrimination (on the grounds listed above), hate speech and harassment was in accordance with this Constitutional injunction.  

In addition to these constitutional and legislative provisions, South Africa is a party to a number of international human rights instruments, which promote the right to equality and non-discrimination. Some of these instruments include:
•    the Universal Declaration of Human Rights (specifically Articles 1 and 7)
•    the International Covenant on Economic, Social and Cultural Rights (specifically Article 3)
•    the International Covenant on Civil and Political Rights (specifically Article 3)
•    the International Convention on the Elimination of All Forms of Racial Discrimination (specifically Articles 2 and 3)
•    the International Convention on the Elimination of All Forms of Discrimination Against Women (specifically Articles 2, 5 and 10)
•    the African Charter on Human and Peoples’ Rights (specifically Articles 2 and 3)

In accordance with its Constitutional and legislative mandate, the Commission will continue, through its various activities, to strive towards the achievement of the right to equality.

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The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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