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Transforming Society

Securing Rights

Restoring Dignity

South African Human Rights Commission Issues of Focus for Media Briefing


29 October 2021

Welcome to this, the second monthly media briefing by the South African Human Rights Commission (the Commission).
The mandate of the Commission is the broadest of all Chapter 9 institutions. In terms of its mandate it is thus responsible for the protection and promotion of human rights as well as monitoring and assessing the observance of all the rights in the Bill of Rights.  
A lot of human rights work is done by the Commission on a daily basis. While some of it receives immediate exposure, experience has shown that some of the important work done does not reach the attention of the public. Insofar as the Constitution expects the Commission to, among others, educate the public about human rights with the aim of assisting the development of a culture of human rights within the country, the Commission has decided to hold a media briefing at least once per month to inform the public, through the media, on some of the work that it is either doing or has done or plans to do in future to promote or protect human rights. The hope is also that such media engagements will also raise awareness of the various rights in the Bill of Rights.

The South African Human Rights Commission is most grateful to the media for the many important roles that it plays in the promotion of and raising awareness regarding human rights. Many violations of human rights continue to come to our attention as a result of the important work that the media plays in this country. While most relate to dramatic events, it is the wish of the Commission to also educate the public about other rights as the promotion, protection of all the rights in the bill of Rights is more conducive to the promotion and strengthening of our democracy. I would therefore like to take this opportunity to appeal for the continued support of the media and to thank you for accepting our invitation.

Today’s media briefing will focus on specific issues the SAHRC deems relevant and of particular import to report on at this stage. It will focus on:
1)    Updating the public on the National Investigative Hearing into the July 2021 Unrest that ravaged particularly the provinces of KwaZulu-Natal and Gauteng;  
2)    Work done by the Commission in relation to the Protection of Children’s Rights in Child and Youth Care Centres (CYCCs) and Secure Care Centres (SCC);
3)    A briefing on my visit to some of the health care facilities in the rural parts of the Eastern Cape during the week 18 to 22 October 2021; and,
4)    The update on progress in the hearing on service delivery challenges in Mpumalanga.
5)    This week Tuesday, the Commission released its report on the investigative hearing into water pollution in the Tshwane Metropolitan area.
I will therefore deal with those four items in that order.

1.    The National Investigative Hearing into the July 2021 Unrest
As we all recall, , unrest broke out and swept through the country in July 2021 and affected the provinces of KwaZulu-Natal and Gauteng more severely than other provinces in terms of the scale of destruction of property and the infrastructure as well as loss of lives.
Many theories were advanced as to the causes of the unrest. However, what is important for the moment is that period of the unrest witnessed massive violations of human rights in the country. Law, being one of the important foundations of our democracy and our rights appeared to have been broken and defeated as pandemonium reigned especially in many parts of KwaZulu Natal and certain parts of Gauteng. Also our law enforcement agencies that are critical for law enforcement appeared to have suffered unexplained paralysis.
 As stated, the unrest was characterised by the loss of life, civil disobedience conduct which included the targeting amongst others of retail centres/malls, shops and other businesses, schools as well as the transport system/s.  The impact of the unrest and its associated activities have been devastating for the country’s economy, which has already been significantly affected by the COVID-19 pandemic and further attributed huge financial losses to businesses. It seems that the unrest exacerbated, amongst other things, inequality among certain communities, unemployment levels, poverty, food insecurity and hunger.
The Commission therefore seeks to investigate the causes of the unrest, and assess its impact on human rights. Among others,  Section 184(2) of the Constitution empowers the Commission to investigate alleged violations of human rights and to take steps to secure appropriate redress where human rights have been violated.
The investigation panel will inquire into, make findings, report on and make recommendations and/or directives concerning the following broad and overarching issues for investigation:

·    The causes of the July unrest, with particular focus on Gauteng Province and KwaZulu-Natal Province.
·    The causes of the alleged racially motivated attacks and killings in the country.
·    The causes of the apparent lapses in law enforcement by state security agencies, particularly the South African Police Service; and the role of private security companies in the unrest.
·    The social, economic, spatial and political factors prevalent in the various affected areas and the extent to which these played a role in the unrest.
The Commission invites submissions from those who have information that can assist in this investigation. It will accept both written and oral submissions from any sources including but not limited to government departments, other state entities, business, civil society and other sources. Details where the submissions can be forwarded to will appear on the Commission’s website.

2.    The Protection of Children’s Rights in Child and Youth Care Centres (CYCCs) and Secure Care Centres (SCC)
In light of its mandate, SAHRC’s Children’s Rights Unit in partnership with the Centre for Child Law (CCL) and the National Preventative Mechanism (NPM) embarked on nationwide monitoring visits to monitor Child and Youth Care Centres, across in South Africa.  The Commission has conducted monitoring oversight visits to 13 CYCCs the following provinces:
•    Eastern Cape
•    Free State
•    Kwa-Zulu Natal
•    Western Cape
Further visits will be conducted to 7 more CYCCs in the Northwest, Mpumalanga, Limpopo and the Northern Cape, as this is an ongoing project.
It has also been the objective of the Commission to ensure that children are treated with dignity and care, irrespective of the offences they have committed and to assure that they are protected from all forms of abuse and degradation. The overall purpose and aim of this initiative is to monitor that children in conflict with the law and children in need of care (according to the Children’s Act 38 of 2005) have access to basic needs such as adequate healthcare, nutrition, shelter, clothing, education and sanitation.
The Commission will also be issuing a report on the monitoring findings and recommendations that will be provided to Government, at the end of the project. The purpose of the report will be present the monitoring findings to the Department of Social Development, and to provide recommendations on strategies that can be implemented towards strengthened management of the CYCCs. The objective will also be to engage government on proposed strategies that can be implemented for better protection of children’s rights within such facilities.

3.    Update on the Commission’s visit of Health Care Facilities in the Eastern Cape Province

3.1.    During the week of 17 October 2021, a team from the SAHRC, comprising the Chairperson, the Provincial Manager of the Eastern Cape, Adv. Loyiso Mpondo accompanied by the Research Advisor to the Chairperson, Ms Ncumisa Willie and the Legal Officer in the EC provincial office, spent that whole week visiting some of the health care facilities in mostly rural areas of the Eastern Cape. The Chairperson had visited the health care facilities in the EC in 2018 and noted and raised some concerns regarding access to health care with the provincial health department, led at the time, by the then MEC, Dr Dyantjie. The concerns included serious staff shortages, the failing infrastructure at some facilities and the poor or inadequate emergency medical services (EMS), to mention a few. Subsequent to the declaration of the National State of Disaster in March 2020, various entities, including the Deputy Public Protector had visited some of the hospitals in the Eastern Cape and reported on the extent to which the onset of COVID-19 and the related declaration of the State of Disaster had exposed the weaknesses of the health care system in the province. Media reports even suggested that the health care system was about to collapse. In the meantime, the South African Human Rights Commission had done investigations into EMS in the Eastern Cape in 2015 and issued recommendations directed at the provincial Department of Health and the provincial government. It had also issued the Mental Health report in 2019 which also added recommendations to the Eastern Cape government. Although these recommendations included the requirement on the provincial government to report on progress in addressing the challenges that the Commission had identified and brought to its attention and in spite of repeated requests and reminders sent to the provincial Department of Health to report, the department had generally ignored the reports of the Commission except on one occasion when a brief, vague report had been sent after which follow up requests were ignored. With the lowering of the disaster risk to level 1, the Commission decided to pay a physical weeklong visit to health facilities in mostly rural health care facilities in the Eastern Cape. The Commission wanted to monitor the state of health care facilities especially in rural settings to see what improvements had been effected by the provincial government regarding the right to have access to health care. We also wanted to engage with the provincial Department of Health especially in light of its up-to-then non-cooperation with the Commission despite the dictates of section 181(3) of the Constitution.
3.2.    Following upon our visits to some of the health care facilities, we raised a number of concerns with the current Member of the Executive Council for Health, including the following:
a)    Health care institutions are plagued by staff shortages at both the clinical and administrative levels. We pointed out that we had raised the concern about staff shortages when we last visited in 2018 and that the situation appeared to have deteriorated in many hospitals that we visited. We could not understand why the department was experiencing such staff shortages when its cost of employment budget accounted for 82% of the total budget of the department;

b)    There has been no visible improvement to the province’s provision of access to EMS. Ambulance shortages are a recurring issue in the province. Ambulances that are used to service communities in rural communities have to travel long distances and endure harsh road conditions. The poor road infrastructure in rural areas has a profound impact on the vehicles and their longevity. Health care facilities in rural areas are far apart and ambulances have to travel very long distances from one village to another. This is one of the reasons why only 285 of the total of 447 ambulances in the province’s inventory are operational. This results in the provincial Department of Health not only being non complaint to the norms and standard but also violating the right to access emergency health services for many. It is important that the government should re-look at the norms and standards. Norms and standards are set without considering the geographical vastness of rural provinces or the socio-economic challenges of rural populations. The norms and standards need to be addressed to include important variables such as distances and geo-locations. In our view, 60 ambulances in an urban population are not the same as 60 ambulances in a rural setting. In addition because a large number of government vehicles are lost to bad roads, the provincial government should plan and improve the poor rural road infrastructure as this is likely to have a positive impact on the number of operational ambulances at any given time. At the moment, instead of purchasing new ambulances to increase the number of ambulances, the province finds itself replacing ambulances that have broken down. EMS is also not prioritised. This is worrying because the right to emergency services is not subject to the availability of resources.

c)    A significant portion of the health budget in the Eastern Cape is consumed by medico-legal claims that are filed, sometimes with success, against the provincial Department of Health for the negligence of its professionals in rendering medical services to patients. In a meeting with the MEC we were told that since the government does not budget for such claims, the payment thereof is drawn from the budget for staff remuneration. In turn this eats up part of the staffing budget leaving the Department unable to fill vacant positions, including posts that are critical for providing access to health care to patients. We were told of an accrual of about R4 billion in medico-legal claims that have to be paid out of the cost of employment budget.

4.    Continuation of the Hearing in Mpumalanga 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 proper sanitation, housing and other basic services. Complaints also include sewage spillages into streets and people’s properties, sewage treatment challenges, electricity outages, non-collection of refuse and potholes on the roads. It seems that the many interventions that the Commission has tried to get the situation to where it is supposed to be have not yielded positive fruit because, on the one hand, service delivery complaints have not or are not decreasing but increasing in certain municipalities and many officials of the Mpumalanga Provincial government remain uncooperative. In this regard, the Commission has spent a significant amount of time and resources issuing subpoenas. There has largely been the lack of a demonstration of the willingness to comply with the Constitution that requires in section 181(2) all organs of state to cooperate with the Commission in the execution of its functions to ensure, among others, its effectiveness.

The Commission has therefore been constrained to embark on a formal inquiry into the state of service delivery within local municipalities in Mpumalanga, and issue binding directives to the provincial government. The inquiry commenced on Monday the 27th September 2021 and ran for the week but could not be completed as some of the municipalities and other stakeholders could not be heard. The objectives of the inquiry are to, amongst others, assess the state of service delivery within local municipalities in Mpumalanga, the causes of such a state and figure out the remedies that can ensure that the provincial government fulfils the rights as envisaged in section 7(2) of the Constitution and the public is able to enjoy the rights they are promised in the Constitution.  
The hearing at the inquiry will therefore continue during the week of 8 – 12 November 2021 and the following municipalities are expected to appear before the Commission and testify: JS Moroka, Chief Albert Luthuli, Thaba Chweu, Dipaleseng, Victor Khanye, and Steve Tshwete.  Also the Department of Water and Sanitation, Stats SA, and the National Treasury are expected to appear.
After the hearings the panel is expected to do a visit to eHlanzeni District Municipality – Nkomazi, and Thaba Chweu, Bushbuckridge, and Mbombela local municipalities).
Questions by Members of the Media:
-    Rounds of three questions each will be taken, with order of responses being Chairperson, Deputy Chairperson, Commissioners, CEO, COO and Provincial Managers.
-    Chairperson can determine who responds to a question.
-    Relevant person responds to question if specifically directed.  
Adv. Bongani Majola
Chairperson

The South African Human Rights Commission.

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