The Commission has the power to amongst others respond to complaints in various ways including litigation, mediation or investigation. It can also pursue and investigate alleged human rights violations on its own accord. At any given time, we are dealing with various and often complex issues, arising from all of the rights in the Bill of Rights.  

This media briefing, as all others to follow it, will focus on specific issues the SAHRC deems relevant and of particular importance to report on at this time.
This media briefing will specifically focus on:
1)    Concerns related to certain local government service delivery failures and their impact on human rights.
2)    Important recent freedom of expression and hate speech Matters.
3)    The SAHRC’s briefing to the Parliamentary Portfolio Committee.
I will briefly deal with each on them below:
1)    Concerns related to certain local government service delivery failures, and the impact on human rights.
It is important to bear in mind that section 7(2) of the Constitution imposes the duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights. On the other hand, the Constitution imposes the obligation on the Commission to promote respect for human rights and a culture of human rights, promote the protection, development and attainment of human rights and monitor and assess the observance of human rights in the country.

The state’s obligation includes the duty to fulfil and deliver on socio-economic rights stipulated within the Constitution, such as the right to have access to sufficient food and water, health care, social security and housing. Of course, these are not the only rights that the state has a duty to fulfil since the Constitution requires it to fulfil all rights in the Bill of Rights.

The state in this context would refer to all organs that make up the state, including local government. The Commission must always bear in mind that the duty of the state to fulfill the socio-economic rights mentioned above depends on the availability of resources and reasonable measures it takes to achieve their progressive realization.

In relation to local government, the fulfilment of these rights requires service delivery at the local level. And this is where the Commission continues to monitor. The Commission notes and is concerned by the number of complaints it receives from individuals and communities, each year, in relation to the lack of service delivery. Complaints include lack of access to housing, water and sanitation, lack of an environment that is not harmful to people’s health and wellbeing.

For purposes of this briefing, the Commission will provide an update on three important matters it is dealing with in relation to service delivery. These are:
1)    The current hearing in the  Mpumalanga Province on service delivery,
2)    Progress in respect of the inquiry into water and sanitation in the City of Tshwane;.
3)    Pietermaritzburg High Court finding on the Msunduzi Municipality.
1.    Hearing in the Mpumalanga Province on service delivery

The Mpumalanga Provincial Office of the Commission has received and investigated service delivery complaints against various local municipalities for a number of years. The issues raised in the various complaints included the failure by municipalities to provide water and housing, sewage spillages, sewage treatment challenges, electricity outages, non-collection of refuse and potholes on the roads. The fact that the numbers of complaints are not going down and recur each year suggests a deterioration of capacity to meet the needs of communities in many of the local municipalities.

Various reasons, including financial and human resources constraints and non-payment for services by residents, have been proffered for the apparent deterioration of service delivery within these local municipalities in Mpumalanga and elsewhere. Notwithstanding the identification of these challenges year on year, however, little has been done in many municipalities to address the challenges in any meaningful way.
In order to investigate these challenges, the Commission has therefore decided to embark on an inquiry at a systemic level, into the state of service delivery within 12 local municipalities in the province of Mpumalanga. The inquiry commenced on Monday, 27 September 2021 at the Ehlanzeni Disaster Management Centre in Mbombela and involves Commissioner Philile Ntuli and Commissioner Jonas Sibanyoni and the Provincial Manager of our office in Mpumalanga, Mr Eric Mokonyama. We expect that the panel hearings will be concluded by Friday, 01 October 2021. The objectives of the inquiry are to, amongst others, assess the state of service delivery within local municipalities in Mpumalanga from a multi-stakeholder perspective and explore solutions to the identified challenges, with the view to ultimately making findings, recommendations and directives aimed at addressing the identified and recurring service delivery challenges.

The Inquiry is being livestreamed on the Commission’s website homepage and social media platforms such as Facebook and Twitter. There will also be daily exhibitions at the venue during Inquiry to promote the work of the Commission.   

A media briefing will also take place on Friday 1 October 2021 from 12h30 until 13h30 at the Ehlanzeni Disaster Management Centre in Mbombela.
2.    Progress into the Inquiry into water and sanitation management by the City of Tshwane.
On 22 March 2018, the South African Human Rights Commission (“the Commission”) received a complaint from Mr Tumelo Koitheng, a resident of Hammanskraal.  In the complaint, he alleged that the water supplied to the community of Hammanskraal had a strange colour, smelt bad and was contaminated as a result of pollution emanating from water treatment plants.

In order to test the veracity of the above allegations, the Commission conducted an inspection in loco on 17 July 2018 at the Rooiwal Wastewater Treatment Works (“Rooiwal WWTW”) and the Temba Water Treatment Works (“Temba WTW”). The Commission was made to understand that the Temba Water Purification Plant is the major water source in the Greater Temba Region. The following was observed:

a.    The water pollution challenges were affecting the drinking water systems at the Temba WTW which sits downstream of the Rooiwal Waste Water Treatment Works, resulting in health risks to the communities.
b.    The sludge treatment facilities could not handle the amount of sludge produced.
c.    Poor quality effluent which did not comply with permit conditions was discharged into the Apies River.
d.    Key mechanical equipment essential for the optimum performance of the treatment process was not functional.
e.    The City of Tshwane Metropolitan Municipality (“City of Tshwane”) had commenced with the upgrading and extension of the Temba WTW;
f.    There was a need for emergency work at Rooiwal WWTW and the assessment of the farm water streams to determine the extent of the pollution.
Furthermore, the Commission learnt from media reports and the Department of Water and Sanitation that the City of Tshwane had been accused of failing to comply with its legal obligations to protect the environment and prevent water pollution by ensuring and maintaining three other treatment plants  under its jurisdiction.

Since 2018 to date, various site meetings and inspections have been held and conducted but no significant improvement is evident. Most actions agreed to by the City of Tshwane were not fully implemented or not implemented at all.
The Commission’s Gauteng Provincial Office (GPO) undertook an inquiry into the state of the wastewater treatment works in the jurisdiction of the City of Tshwane on 26 February 2021. The Inquiry took place after the Commission received repeated complaints regarding the malfunctioning of a waste water treatment facility that was releasing untreated or partially treated sewage into the Apies and Pienaars Rivers and the Roodeplaat and Leeukraal Dams within the jurisdiction of the City of Tshwane Metropolitan Municipality. It was decided that the inquiry would look at all waste water treatment works within the City of Tshwane which comprise Rooiwal, Klipgat, Baviaanspoort & Sunderland Ridge WWTW. A number of ongoing engagements and site visits together with the City of Tshwane and the Department of Human Settlements, Water and Sanitation, preceded the Inquiry.

The Inquiry was held at Roodeplaat Dam. The City of Tshwane, the then Department of Human Settlements, Water and Sanitation and the Department of Environment, Forestry and Fisheries were invited to engage with, and make submissions to the Commission regarding the condition, management and status of the waste water treatment works in the metropolitan area. This was to assess the effects of water and waste water treatment on the rivers and dams, determine the steps that were being taken or that would be taken to solve the problems identified, to correct the constitutional violation caused by the spillage of raw and untreated sewage into the rivers and dams especially as it was polluting the fresh water sources within the City of Tshwane.
Among the objectives of the inquiry, the Commission sought to explore the following:
i.    Whether the Department of Water and Sanitation has effectively performed its monitoring function and/or intervention by ensuring that the City of Tshwane, as the relevant water services authority in respect of the four treatment plants, complies with the prescribed standards;
ii.    Whether the Department of Water and Sanitation has taken any legal steps, issued any notices, directives and convened meetings with the City of Tshwane with a view to rectifying or ameliorating the state of affairs;
iii.    Whether the City of Tshwane has complied with any compliance notices and directives issued by the Department of Water and Sanitation; and,
iv.    Whether there has been structured, consistent and careful engagement between the three spheres of government regarding the deteriorating water quality in some parts of the City of Tshwane;
 
People and animals who drink polluted water are vulnerable to illnesses such as cholera, hepatitis and bilharzia. The elderly, children and those who are ill, are even more at risk of adverse health conditions. The polluted water affects groundwater.  The sewage pollution of dams and rivers especially, means that the water can no longer be used for water sports and consequently as a tourist attraction. It also has a negative economic impact.
It seems that the primary reason for the unacceptable levels of pollution is the failure to properly manage and maintain existing waste water treatment works (WWTWs) in the City of Tshwane over a prolonged period of time. Failures in management which have resulted in a regression in standards of delivery, include poor planning and implementation evidenced by, among others, the insufficient number of WWTWs to accommodate the growing population in the City of Tshwane.  

These observations, amongst many others, along with the Commission’s recommendations will form part of the report the Commission will be releasing soon. In terms of our procedures, the report and preliminary findings will be distributed to the affected organs of state and they will be able to make further submissions whereafter the Commission will produce its final report which will include the recommendations aimed at rectifying the complex problem presented by this state of affairs.  The Commission will alert the media through a media alert once the report is uploaded onto the Commission’s website.

3.    The New England Road Landfill operated by the Msunduzi Municipality
The Commission instituted action in the Pietermaritzburg High Court against the Msunduzi Municipality in February 2021. In June 2021, the High Court found the Msunduzi Municipality in breach of its obligations relating to the operation and management of the New England Road Landfill site. (South African Human Rights Commission v Msunduzi Local Municipality & Others (8407/2020P) [2021] ZAKZPHC 35.)
The Commission welcomed the judgement handed down by Judge Rishi Seegobin, as the landfill site has been adversely affecting the air quality, environment and security of the residents of surrounding areas for many years now. In July 2020, a major fire broke out at the landfill, which took over a week to put out. The fire affected the area and surrounds to such an extent that people evacuated the area due to the noxious air, and the N3 high-way had to be shut due to poor visibility. This fire occurred during the COVID -19 pandemic, which as we all know, results in dyspnea, or shortness of breath.  Heavy smoke and toxic and carcinogenic gasses  continued to be produced at least four days after the fire was extinguished.

Various other challenges have also plagued the landfill site over the years.   These have contributed and enabled the sporadic outbreak of the fires and the emission of strong toxic fumes, as the types of waste coming into the landfill has not been regulated. This poses severe threats to the sustainability of the environment and to the health, and well-being of residents in both the local and surrounding communities.

The two-pronged court order included a declarator as well as a structural interdict as per the initial relief sought by the SAHRC.  In terms of the declarator, the Court found the Msunduzi Municipality (the Municipality) to be in breach of the Revised Compliance Notice and the Variation Waste Management Licence that was issued to it by the Department of Economic Development, Tourism and Environmental Affairs (the Second Respondent).  The Court further found the Municipality to be in breach of Section 24 of the Constitution and Sections 20 (b), 31L (4), 28 (1) and (3) of the National Environmental Management Act No. 107 of 1988 (NEMA).  In addition, the Municipality was also found in breach of the National Water Act No. 36 of 1998 as well as its obligations in terms of international law.
In terms of the Structural Interdict, the Municipality has been ordered to file a detailed and comprehensive action plan with the Court within one (1) month of the date of the court order.  The Municipality is to thereafter file monthly reports with the court indicating its progress in implementing the plan of action.  The parties to the action are entitled  to comment on both the action plan and monthly reports filed by the Municipality. The Municipality was also put on terms to discharge its duty of care and remediation of the environment in terms of NEMA.
Since the judgment, the Municipality  submitted an action plan to court in August 2021. This action plan however set no deadlines for key targets to enable measurement of progress. The court order stipulated that the KZN provincial Department of Economic Development, Tourism and Environmental Affairs (the Department), has to approve the Municipality’s action plan. The Department has not done so as they too appear to share the Commission’s concerns relating to the Action Plan presented by the Municipality. We understand that the two spheres of government are engaged in dialogue about the various concerns of the Department. The Commission through its KZN office has sought a meeting with the Department to discuss the status of their engagement. To date the action plan has not been updated. We reserve our rights to return to court to seek a contempt of court order should the need arise. Ultimately and on behalf of the residents of Umsunduzi, and in particular Pietermaritzburg, we seek compliance with conditions on the landfill license that allows the  Municipality to manage the landfill at New England Road. We would like to see for instance the regulation of the types of waste allowed to be dumped there (e.g. there should be not toxic matter such as harmful chemicals). We also would want the municipality to prevent leaching of the waste  into water resources, as it is located within the water- table of the Umsunduzi river. Finally we would like to ensure that the site is managed so as to restrict access and prevent fires and other hazards.

South Africa’s waste policy and legislation is now underpinned by the desire to entrench the waste hierarchy approach, as part of an integrated waste management strategy. Waste hierarchy seeks to reverse the damaging environmental impact of landfills, which pose potentially dangerous health and safety risks and which potentially leach into ground water sources or nearby rivers.
Under this strategy municipalities should begin developing policies around cleaner production by industries and businesses, as a proactive measure to prevent excessive waste production. Next municipalities should incorporate a recycling program,  and ensure that there is treatment of waste especially industrial waste and in the final instance use landfills.  It appears that this is not the approach of the Msunduzi municipality which appears to rely solely on the New England Road Landfill, which according to some studies  has exceeded its lifespan.
The Commission will continue to monitor and assess the Municipality’s progress in respect of the provisions of the court order.  The Commission will further provide all necessary input, comments and assistance that may be required to ensure that the rights of the citizens of Pietermaritzburg are protected as provided for by the Constitution and other legislation.

4.    Freedom of Expression and Hate Speech Matters - The Tracy Zille hate speech matter, Jon Qwelane Matter:
Freedom of Expression in our Constitution is not without its limits. When exercising ones right to freedom of expression one should be circumspect and not transgress into the terrain of hate speech.   Hate speech, apart from being a constitutional violation, also violates the Prevention of Unfair Discrimination Act, 2000 (PEPUDA).

Recently, with the proliferation of numerous social media platforms, the Commission has found that many instances of hate speech are expressed through these public and digital means. Violations of the right to freedom of expression through hate speech, is one of the most common complaints brought to the Commission. We are of the view that members of the public in particular are generally not aware of the parameters, and to assist all South Africans to be in compliance with our Constitution, we are in the process of developing a SOCIAL MEDIA COMPACT which could be used as a template for all other organizations and businesses, while being a learning tool for ordinary people in the country. This will address issues of hate speech and defamation. We will launch this social compact in the near future.
Statements which violate the right to freedom of expression is usually directed at vulnerable groups on the basis of their race, class, nationality of origin, sex, gender and or sexual orientation, gender identity or gender expression along with many other distinguishing factors.
 The Commission also welcomes the clarity the Constitutional Court provided for what constitutes hate speech in the matter of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22.

4.1     Jon Qwelane Matter
The matter concerns an article that the late journalist Mr. Jon Qwelane had published in the Sunday Sun in 2008, entitled “Call me names – but gay is not okay”. In the article, Mr. Qwelane called upon politicians to amend the Constitution of the Republic of South Africa, 1996 (Constitution) so as to remove the equal protection of the law afforded to the LGBTQI+ community. Mr. Qwelane further compared homosexual people to animals and accused them of catalysing the erosion of societal values.
The Commission received 350 complaints following publication of the article, constituting the highest number of complaints received by the Commission relating to a single incident at the time. The Commission instituted proceedings in the Equality Court, which prompted Mr. Qwelane to challenge the constitutionality of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA) for its broadness and vagueness. This matter brought into sharp focus the boundaries of the right to freedom of expression.
In a rich and nuanced judgment, the Constitutional Court clarified the components of hate speech under section 10 of PEPUDA. Notably, the Constitutional Court found that the word hurtful should be removed from section 10 because it limited to right to freedom of expression, guaranteed in section 16(1) of the Constitution. This is based on the reasoning that freedom of expression protects speech that might be merely offensive to a person. Additionally, the Concourt confirmed that speech should be both harmful and incite hatred in order to be considered hate speech and thereby constitute a violation of section 10, which prohibits hate speech.

In line with this, the Concourt meaningfully engaged with what can be considered as harmful. It was found that the measure is objective to the extent that it can be reasonably determined that the speech causes harm (psychological, physical, or societal) to a person or to a vulnerable group. The Concourt recognised the LGBTQI community as vulnerable group and agreed with the inclusion of sexual orientation in the list of prohibited grounds for the purpose of hate speech. Parliament now has 24 months to make the amendments recommended by the Court.

Based on the above, and the previous understanding of section 10, the Concourt found that Mr. Qwelane’s abhorrent article constituted hate speech, because it caused harm and the incited hatred against the LGBTQI community. In the light of Mr. Qwelane’s passing, the Concourt held that the issuing of an apology and investigation by the police, as ordered by the Equality Court, was no longer appropriate. Nevertheless, the court confirmed the Equality Court’s declaratory order that Mr. Qwelane’s article constituted hate speech that vilified the LGBTQI+ community.  Moreover, the court held that the Supreme Court of Appeal’s cost order against the Commission was inappropriate, and accordingly ordered that Mr. Qwelane’s estate pay the Commission’s costs.

Section 10 of PEPUDA now reads as follows:
“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”
The Commission calls on every member of South African society to desist from engaging in hate speech, and to instead actively promote equality and social harmony in an endeavour to achieve the constitutional vision of a society based on human dignity, freedom and equality.
4.2   The Tracy Zille Matter
The SAHRC was alerted by media reports of a person “Tracy Zille” who posed on Twitter as a white female, pushing racist and misogynistic views on Twitter.
The Limpopo Provincial Office instituted proceedings in the Louis Trichardt Magistrate Court to pursue the matter against Anthony Mathumba, in respect of harassment on the basis of gender. The Respondent denies that he is Tracy Zille however an expert witness has been obtained to assist the Limpopo Provincial Office to prove otherwise.
In respect of its investigations, the Limpopo Provincial Office requested account details of Tracy Zille from Twitter. After a lengthy stand-off with the multi-national social media platform, the Limpopo Provincial Office obtained a subpoena from the Equality Court which was served on Twitter, and the account details was subsequently provided to the Commission.
The matter is still the subject of litigation and is poised to be argued in the Magistrates court   on the 6th, 7th and 8th October 2021, and the Commission has been joined by Media Monitoring Africa as amicus curiae.

5.    The SAHRC’s briefing to the Parliamentary Portfolio Committee.
The South African Human Rights Commission, like all public institutions is accountable to the public. Thus the Commission is held to account by elected public representatives through our National Legislature. The Commission therefore regularly reports to the Parliamentary Portfolio Committee on Justice and Constitutional Development. The SAHRC is due to report to the Committee once more during October 2021.

The Commission will be providing an update to its performance in the execution of its constitutional mandate, as well as its budgetary management and spend.
It is essential that the media cover these briefings as it brings the public closer to understanding and viewing the entirety of the Commission’s workings.

ENDS