Committee on Economic, Social
and Cultural Rights
3 October 2018
The Committee on Economic, Social and Cultural Rights today concluded its review of the initial report of South Africa on its efforts to implement the provisions of the International Covenant on Economic, Social and Cultural Rights.
Introducing the report, John Jeffery, Deputy Minister of Justice and Constitutional Development of South Africa, said that the Covenant was a major source of influence for the inclusion of economic, social and cultural rights in the national Constitution. The value of the Covenant was that it helped the Government to measure whether its domestic laws, policies and programmes complied with its international obligations. South Africa was a country divided into two nations – one was relatively prosperous and white, and the other was black and poor, living under grossly underdeveloped conditions. Nonetheless, millions who had previously been excluded nowadays had access to education, water, electricity, healthcare, housing and social security. If South Africa was to break the cycle of poverty, it had to educate the children of the poor. The Government had insisted that education should start in early childhood. Land inequality and its adverse impacts were a risk to future political stability and needed to be addressed.
In the ensuing discussion, the Committee Experts thanked South Africa for developing jurisprudence on the justiciability of economic, social and cultural rights, and for promoting the business and human rights agenda within the United Nations system. Experts inquired about very high levels of inequalities and the effect of austerity measures, racial disparities in the poverty rate, corruption and misuse of public revenue, and illicit financial flows on the population. They also asked about human rights defenders facing threats, harassment and repression of their protests in certain contexts, the right to work for asylum-seekers, access to land for women, the situation of indigenous peoples, and support for persons with albinism. Other issues that were raised included the redistributive capacity of the fiscal system, the rate of unemployment, the calculation of the minimum wage, the gender pay gap, labour inspections, trade union rights and the right to strike, the employment quota for persons with disabilities, the social protection floor, the uptake of the child support grant, the criminalization of sex workers, the National Health Insurance Bill, conscientious objection to abortion, evictions from farms and land reform, access to adequate housing, the right to food and high rates of stunting, polygamy and virginity testing, challenges in the provision of free primary education, high school dropout rates, privatization of education, access to the Internet, and protection of indigenous languages.
In his concluding remarks, Olivier de Schutter, Committee Member and Country Rapporteur for South Africa, thanked the delegation for the high-quality dialogue, and acknowledged the country’s struggle with the legacies of apartheid. But, on the other hand, South Africa had a very progressive Constitution, an independent judiciary, and a vibrant civil society.
On his part, Mr. Jeffery thanked the Committee for the level of insight and interest it had shown in the work done by the Government of South Africa. The delegation appreciated the many observations and comments made during the dialogue. The Government found that the Covenant was making a difference in the realization of socio-economic rights in the country, and it was of the view that the Covenant was not static but a living document.
Maria Virginia Bras Gomes, Committee Chairperson, thanked the delegation for the very interesting and constructive dialogue. She also thanked civil society representatives for their contribution. She stressed that the Committee was not driven by any morality criteria; it was driven by the framework of the Covenant.
The delegation of South Africa consisted of representatives of the Department of Justice and Constitutional Development, the Department of International Relations and Cooperation, the Department of Arts and Culture, the Department of Basic Education, the Department of Rural Development and Land Reform, and the Permanent Mission of South Africa to the United Nations Office at Geneva.
The Committee will next meet in public on Thursday, 4 October, at 10 a.m. when it will consider the initial report of Cabo Verde (E/C.12/CPV/1).
The second periodic report of South Africa can be read here: E/C.12/ZAF/1.
Presentation of the Report
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, said that the International Covenant on Economic, Social and Cultural Rights was a major source of influence for the inclusion of economic, social and cultural rights in the national Constitution. The value of the Covenant was that it helped the Government to measure whether its domestic laws, policies and programmes complied with its international obligations. South Africa was a country divided into two nations – one was relatively prosperous and white, and the other was black and poor, living under grossly underdeveloped conditions. It took time to erode that divide. Despite enormous progress over the past two decades in reviewing progress on transformation at all levels and the achievement of substantive equality, dignity and human rights, it was acknowledged that more still needed to be done. After enduring the pernicious effect of apartheid, which the United Nations had declared as a crime against humanity, which had systematically privileged a few at the expense of the majority, the legacy of decades of colonialism and apartheid was still acutely felt nowadays. South Africa remained a highly unequal society where too many people lived in poverty and too little work. The National Development Plan mentioned the pervasive effects of apartheid, even after more than 20 years, regarding poverty, inequality, weak economic growth and unemployment. Budgetary restraints were a reality, like in many developing countries. Despite that, the growth of non-interest expenditure continued to outpace inflation. The Government had slowed the growth of other areas of expenditure, while spending on social priorities, such as health, education, social protection, housing, and community amenities. Access to services had broadened immensely. Millions who had previously been excluded nowadays had access to education, water, electricity, healthcare, housing and social security. The Government had produced four million new housing opportunities through its subsidy programme for the poorest South Africans. Some 88 per cent of households had access to piped water in 2017, whereas 84 per cent were connected to an electricity supply. More than 17 million social grants were paid each month, benefiting nearly a third of the population.
If South Africa was to break the cycle of poverty, it had to educate the children of the poor. The Government had insisted that education should start in early childhood. Nowadays, there were nearly a million children in early childhood development facilities. There was near universal access to schools for children between the age of 7 and 15, and the Government would now focus on improving the quality of education. In December 2017, the Government had announced that it would be phasing in fully subsidized free higher education and training for poor and working-class South Africans over a five-year period. The judgments of national courts were continuously being factored into the policies of the Government to ensure the strengthening of a human rights culture in the country. Since the submission of the country’s initial report, there had been a debate about section 25 of the Constitution which related to property rights and expropriation without compensation. Land inequality and its adverse impacts were a risk to future political stability and needed to be addressed. The 2017 Land Audit had reported that 72 per cent of agricultural land was owned by white South Africans, 15 per cent by coloured persons, five per cent by Indians, four per cent by Africans, and three per cent by others. Women only owned 13 per cent of farmland. That was a reflection of the systematic dispossession of land. Land ownership was still skewed along racial and patriarchal lines. In 1994 the Government had set itself a target to transfer 30 per cent of the total productive land by 2014, which it had not achieved. Instead, it had transferred only 10 per cent. The use of the “market value” principle over “just and equitable” was a major contributing factor to the slow pace of land reform. As for fighting corruption, the Judicial Commission of Inquiry had been appointed to investigate allegations of State capture, corruption and fraud in the public sector, and it was chaired by the Deputy Chief of Justice. The country was close to the ideal of achieving universal healthcare for all through the adoption of the National Health Insurance Bill in June 2018. The bill was a health financing system that pooled funds to provide access to quality health services for all South Africans based on their health needs, irrespective of their socio-economic status.
Questions by the Committee Experts
OLIVIER DE SCHUTTER, Committee Member and Country Rapporteur for South Africa, thanked South Africa for developing jurisprudence on the justiciability of economic, social and cultural rights, and for promoting the business and human rights agenda within the United Nations system. Mr. de Schutter also commended the fact that the State party’s report was subject to broad consultations.
The Country Rapporteur inquired about the possibility of ratifying the Optional Protocol to the Covenant, which was very much inspired by South Africa’s caselaw. South Africa’s declaration on article 13 and 14 on the right to education was not in line with the Constitution.
Was there a possibility to improve the training of judges and lawyers about international human rights standards? Some statistical data was missing in the State party’s report, namely disaggregated data by race and gender per province.
It seemed that the funding for the National Commission on Human Rights was insufficient. Civil society was vibrant in South Africa, but some human rights defenders faced certain threats, harassment and repression of their protests in certain contexts. The Committee expected that the Government would send a strong message that the right to dissent was an essential part of democracy.
Mr. de Schutter reminded that certain provinces were more impoverished than others. There were very poor municipalities in urban areas, whereas urban municipalities were generally better off. What could be done to bridge those geographical disparities?
The Country Rapporteur also recalled that South Africa was one of the most unequal societies in the world, with very high rates of inequalities. The wealth of individuals was not significantly taxed, and personal income tax rates had fallen since 1997 for the wealthiest members of the society. Could South Africa have a stronger role for the Department for Monitoring and Evaluation to ensure that budgetary priorities were defined in line with the Covenant? Could the human rights impact be systematically taken into account as austerity measures were adopted?
The Committee was impressed by the country’s legal framework to address corruption, including the legislation to protect whistle blowers. Mr. de Schutter suggested that the definition of whistle blowers could be expanded. Apart from the corruption committed by high-ranking Government officials, there was also petty corruption. Could a rights-based approach to the provision of public services tackle petty corruption? What happened to reports on the misuse of public revenue?
Turning to tax evasion, the Country Rapporteur recalled that enormous revenues were lost by South Africa because of illicit financial flows. Should the national revenue service be strengthened to prevent those flows?
Due to the history of apartheid, South Africa had a remarkable legal framework to tackle discrimination. However, what had been done to implement chapter 5 of the Promotion of Equality and Prevention of Unfair Discrimination Act since its adoption in 2000?
One provision of the Refugee Amendment Act that was an area of concern was the right to work for asylum seekers. That issue was not simply about avoiding starvation, but about the sense of dignity. All the rights of the Covenant should be enjoyed by all persons under the State’s jurisdiction, regardless of their status.
Mr. de Schutter further inquired about access to land for women, noting that only 13 per cent of agricultural land was owned by women. Part of the problem was customary forms of tenure, as pointed out by the Committee on the Elimination of Discrimination against Women.
An Expert inquired about the situation of indigenous peoples, which constituted about one per cent of the population. The Khoisan people were still classified in the Constitution as “coloured.” How did the State party plan to accommodate those indigenous communities and ensure their political representation? More information was requested on measures taken to ensure that their free, prior and informed consent was obtained prior to any decision being made affecting the land and territories of indigenous peoples. Did the Government plan to ratify the International Labour Organization’s Convention No. 169?
The rate occurrence of albinism in South Africa stood at 1 in every 5,000 persons, which was four times higher than in other parts of the world. There was a high rate of attacks on persons with albinism. They were often placed in special schools, which meant that they had difficult access to education. How did the Government plan to address their extremely vulnerable position, including the lack of reasonable accommodation and lack of social grants for their condition?
How did the delegation explain the wide gap in income from work and capital between black and white South Africans? As for the taxation policy, how did it help with the redistribution of the national income among the population, and to what extent did it ensure that the country’s available resources were used for the benefit of all?
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, noted that South Africa’s Constitution was one of the few in the world that contained a large range of economic and social rights. Why had the State party not ratified the Optional Protocol to the Covenant? Why was the right to work not justiciable? Had the Covenant helped the country fight against systematic and cross-cutting discrimination?
Replies by the Delegation
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, explained that it had taken some time for South Africa to ratify the Optional Protocol because the Government wanted to ensure that it had proper reporting mechanisms on the Covenant. As for the declaration on article 13 and 14 on the right to education, he clarified that everyone had the right to basic education and to further education which the State could make reasonably available. Education was compulsory until the age of 15. Education was free for those who could not afford it; those who could afford it paid school fees. The Government had committed itself to working on the access to schools for children with disabilities as a matter of priority.
Everyone in the Government was affected by budget cuts, and so was the National Human Rights Commission, including the Gender Commission and the Commission on Cultural and Religious Rights. The right to protest was guaranteed in the country, but very often protests turned violent with the burning of public property, the head of the delegation explained. Sometimes there could be communal divisions, but the law had to take its course if people were attacked, injured or killed. In general, civil society was free to protest.
In terms of protected disclosure, the definition of the employer had been broadened. Whistle blowers could seek remedy if they could prove that they had not been employed because they were whistle blowers. Any form of corruption was illegal, including petty corruption. It would be up to the National Assembly to deal with unauthorized expenditure. In that sense, the powers of the Auditor General would be strengthened. Judges and magistrates received training on international human rights treaties.
Turning to the questions about indigenous peoples, Mr. Jeffery explained that there was no legalized form of racial classification; it was largely self-classification. The Khoisan indigenous peoples were considered to be the oldest people found in South Africa. All were discriminated against by the colonizers. Eleven languages had the status of official languages in the country.
As for persons with albinism, Parliament was currently considering the Hate Crime and Hate Speech Bill. The Government was also addressing the problem of harmful cultural practices that negatively affected the rights of persons with albinism. Persons with albinism received sunscreen provisions in hospitals, and at school they received assistive devices and textbooks with large print. If persons with albinism could not work, they qualified for State benefits.
NOZIPHO MXAKATO-DISEKO, Permanent Representative of South Africa to the United Nations Office at Geneva, noted that the starting point for South Africa in terms of securing equal rights for all was not the same. Many in South Africa had started with an empty bag. The problem of illicit financial flows was a common problem for developing countries. The solution of that problem went to the heart of the right to development. Perhaps the Committee could adopt a General Comment on the need to adopt an international binding instrument to control illicit financial flows, the Ambassador suggested. It would be more appropriate for the United Nations to deal with that problem than to have the International Monetary Fund and countries of the Organization for Economic Cooperation and Development deal with it. There was an ongoing effort in South Africa to tighten scrutiny and monitoring. It had been decided that South Africa would be a mixed economy which would be able to respond to market imperfections, while responding to the ideals set out in the national Constitution. There was a commitment on the part of the Government to reduce unemployment. Turning to the redistribution of land, the Ambassador drew attention to the ongoing debates in South Africa. The question of the ratification of the Optional Protocol to the Covenant was at its heart a question of domestication of international human rights instruments.
South Africa had a very unique system of asylum management; it did not run camps or detention centres. Migrants could work in South Africa legally, even when the domestic unemployment rate was very high. The Government was thus very keen to ensure that its migration policy did not undermine its employment policy. The term “asylum seekers” was used to refer to people who were in the process of becoming recognized as refugees. It used to take between two and five years to have one’s asylum application processed, and asylum seekers received the right to work once they filed their asylum application. However, the right to work had led to huge abuse by economic migrants. More than 90 per cent of applicants for asylum were economic migrants, and their applications were denied. Nevertheless, most of them stayed to work in South Africa because employers did not have a habit of checking whether they held valid visas. The Government had, therefore, decided that destitute asylum seekers were better off receiving social assistance than the right to work, and the proposed Refugee Amendment Act would not automatically grant asylum seekers the right to work. They would have to prove that they had no access to social assistance before obtaining the right to work.
Follow-up Questions by the Committee Experts
An Expert observed that if the classification of indigenous peoples was not enshrined in law, then there was no reason for the Government not to provide them with the right to self-identification.
Another Expert inquired about the redistributive capacity of the fiscal system of South Africa. The recent austerity measures had reduced the role played by income taxes in social spending, which could lead to increasing inequality, which was the main problem in the country. How would the Government search for social equality if it continued to take measures that weakened the redistributive capacity of the fiscal system? The Government could re-consider tax exemptions for certain high-income earners. Income inequality before and after taxes showed that South Africa had a problem with its development model. If South Africa wanted to achieve sustainable economic development, the Government needed to promote small businesses, invest in quality education, and deepen land reform.
Experts also inquired about South Africa’s huge backlog in the processing of asylum applications, and about the implementation of the Khoisan Leadership Bill without relevant disaggregated data on indigenous peoples. Was there any other legal provision addressing the special vulnerabilities of persons with albinism, except the one on hate crimes and speech?
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, acknowledged the Ambassador’s suggestion that the Committee work on the issue of an internationally binding mechanism to control illicit financial flows. However, she noted that the Committee had produced General Comments on the right to work. The Chairperson reiterated the question about the benefits of ratification of the Covenant for the country.
OLIVIER DE SCHUTTER, Committee Member and Country Rapporteur for South Africa, referred the delegation to the Committee’s General Comment No. 24 on businesses and human rights, which spoke about abusive tax practices by multinational corporations.
Replies by the Delegation
The head of the delegation underlined that a disability grant was available to persons with albinism because their disability prevented them from working.
The delegation stated that in 2017 South Africa had received more than 40,000 asylum applications. The Refugee Amendment Act would not deny the right to work to people currently in the process of asylum application. But the Government did not want to create a dependency syndrome among the refugee population. The idea of the Refugee Amendment Act was to prevent the abuse of the asylum and refugee system, not to prevent people from coming into the country in the first place. The authorities did not want to outlaw the right to work for asylum seekers, but to review it.
Turning to the claims by indigenous peoples, the delegation stated that the Government had paid particular attention to accommodating the demands of the Khoisan peoples. It consulted with them on all issues that concerned them. They were involved in the development of the Khoisan Leadership Bill. In order to provide restitution and redress, the Government needed to find out about how people self-identified in the pre-apartheid period. But reverting back to race classification would violate the Constitution. The current debates revolved around the cut-off date for land restitution, and some had proposed that the cut-off date should be 1652 because it was then that Dutch captain Jan Van Riebeeck had first landed on the Cape of Good Hope and had claimed that land as the property of the Dutch Kingdom. The Khoisan people claimed that that land was rightfully theirs.
NOZIPHO MXAKATO-DISEKO, Permanent Representative of South Africa to the United Nations Office at Geneva, said that South Africa had drawn inspiration from the International Covenant on Economic, Social and Cultural Rights. Addressing the country’s model of development, she reminded of the starting point of South Africa which was that the economy was reliant on cheap labour. Achieving equality required a huge leap. The question was how to achieve it without causing instability.
The Government had tabled proposals regarding taxation policy with a view to introducing a more progressive taxation system, added JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa.
Second Round of Questions by the Committee Experts
While higher earners got higher salaries in recent years, lower earners had not seen any increase in their salaries. The rate of unemployment stood at 37 per cent, and even 67 per cent among youth. How did the Government plan to address those problems?
There was a lack of legislation dealing with the informal economy. What was the scope of the informal sector and what was the Government planning in order to regulate it? Experts also pointed out to an increase in temporary employment in the agricultural and retail sector, and they asked about the calculation of the minimum wage.
Turning to the gender pay gap, Experts noted that collective agreements hardly provided any provisions on equal remuneration. Many women worked in the retail sector and as domestic workers in low-paid positions. The authorities had a problem of conducting labour monitoring in the farming sector due to the lack of access to private farms.
Sex workers were criminalized which led to more physical violence in that sector. Many migrants worked as domestic workers and had problems accessing redress fearing deportation. In the mining sector there were huge problems with occupational injuries and hazards, the right to adequate housing, and with the implementation of companies’ social and labour plans.
On trade union rights, Experts asked how the Government planned to support bargaining solutions in informal sectors. The police often suppressed labour strikes in the mining sector. How could the right to protest be guaranteed and what was the experience with protests after the Marikana case in 2012?
How would the State party address racial disparities in the poverty rate, as well as assist people living under the food poverty line? How did the Government calculate the social protection floor?
Replies by the Delegation
The delegation said that the Constitution provided for all labour rights, and the Government had passed a number of laws to address inequalities and imbalances of the past. Labour laws covered all workers in the country, regardless of their status. It was up to trade unions to ensure their level of unionization, while the Government provided training to social partners so that they became more engaged.
The Government was aware of the challenge of high unemployment, and it was taking numerous steps to address it through public works, internships and training for young graduates, support for small and medium-size enterprises, the Black Industrialist Programme, skills development for those seeking employment, and job fairs.
The Employment Equity Act protected the rights of persons with disabilities in both the private and public sectors. Employers were expected to achieve certain targets in the employment of persons with disabilities. No person could be charged for the provision of temporary employment services by private employment agencies. New legal provisions stipulated that temporary employees would receive social benefits on an equal footing with permanently employed persons. The Government was currently amending laws to allow domestic workers to be registered in the unemployment insurance fund.
Turning to labour inspections, the delegation explained that inspectors could not simply enter private homes at their will. They had to issue a notice a week prior to the inspection. When a certain sector was chosen for blanket inspection, labour inspectors could conduct unannounced visits. Currently, South Africa had almost 1,000 inspectors countrywide. However, some vacancies could not be filled because of austerity measures.
Social partners in South Africa had agreed to introduce a national minimum wage, which was not at the level that the Government wanted but it was a good starting point. It would be applied both to formal and informal sectors. There were challenges in the area of equal pay for work of equal value. The Government had engaged with the International Labour Organization on that issue as well as with the Equal Pay International Coalition. South Africa presided the International Labour Organization’s Global Commission on the Future of Work, focusing particularly on employment in developing countries.
South Africa had a slightly ageing population, so the budget had been relatively declining, and there had not been any policy change on social expenditure since 2012. Access to social security was largely conditioned by access to employment, which should be corrected with the introduction of universal healthcare. When it was first introduced in 1998, the child support grant had initially been set against subsistent levels of infants up to the age of 7. Subsequently, the Government had extended it to children up to the age of 18. The Government had also recently tabled a proposal to determine categories of children (orphans, for example) that could qualify for a higher value of the grant and to bring them above the food poverty line. As for the challenges in the payment of social grants, the Government no longer relied on private mediators in their payment, partnering with the Government-run South African Post Office.
Responding to Experts’ questions about the failure of the Government to respond to the specific vulnerabilities of women, the delegation reminded that the recently adopted Mining Charter stipulated the increased participation of women in mining, including female-owned companies. The Department of Mineral Resources had launched intensive community consultations to strengthen community participation in the mining sector. Women were overrepresented in the mining sector and they had particular vulnerabilities in terms of exploitation by traders, safety, and raising of children. In order to improve the safety and health of mine workers, the Department of Mineral Resources would host a relevant summit in November 2018.
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, explained that the right to protest and picket was covered by old legislation. The requirements were for organizers to give notice, and for municipalities to appoint people to liaise with protesters. Responsible officials may decide to restrict protests if they deemed this necessary. The police did not have that power. The Constitutional Court was currently ruling on whether organizers of unannounced protests and gatherings could be held criminally responsible.
Criminalization of sex workers was currently a subject of great discussion in the country, with many different views. The Law Reform Commission had proposed monitoring of human rights violations experienced by sex workers and of the police work in that sense, the Deputy Minister explained. It was a policy issue that the country had to address. As for the Marikana case recommendations, they were currently being implemented, and most families of deceased mine workers had been paid compensation.
Follow-up Questions by the Committee Experts
An Expert observed that the Government should focus on the exploitation of sex workers by entertainment establishment owners and traffickers. The question was how to curb the demand side, rather than the supply side, in line with the Swedish model.
It seemed that most social policies dealt with either young or older persons. What happened with people in between? Did adjustments to the minimum wage take place on a regular or ad hoc basis? Equal pay for the work of equal value could be an issue of both gender and race in South Africa.
Only one third of the requests to hold protests in the mining-sector were approved. In 2015, there were reports of strike-related intimidation and violent incidents resulting from police interventions. Had the situation changed since then? Amendments of the Labour Relations Act had been criticized as potentially leading to the limitation of the right to strike, undermining the collective nature of strike.
Was the system of labour inspection strong enough? Experts observed that there was a shortage of qualified labour inspectors, due to budgetary restrictions and high turnover.
What were the challenges of South Africa in the context of the International Labour Organization’s Global Commission on the Future of Work?
OLIVIER DE SCHUTTER, Committee Member and Country Rapporteur for South Africa, speaking about the fiscal space for increasing the child support grant, remarked that investment in social rights could have very positive returns. He also remarked on the low-level make-up of the child support grant.
He further inquired about the employment quota for persons with disabilities. Were employers supported financially when they made reasonable accommodation for persons with disabilities?
Mr. de Schutter voiced concern about the fact that labour inspectors did not have access to farms in remote areas, and that unannounced inspections were very difficult to perform. What were the ways to overcome those concrete obstacles and how could farm workers be protected from reprisals or deportation?
Finally, the Country Rapporteur asked about the mechanisms to monitor the standard of living to determine the social protection floor for persons between the age of 18 and 59.
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, wanted to clarify whether South Africa used the International Labour Organization’s definition of the social protection floor. Where did the Government stand on the basic income grant? The Government could contemplate using a composite index on the adequate standard of living.
Replies by the Delegation
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, said that he was not sure where the information about only one third of protests in the mining sector being allowed came from. Any restrictions on the right to strike would have to be justifiable. As for equal pay for the work of equal value, employers frequently based the salaries they paid on the employee’s previous salary.
The buying and selling of sex was currently illegal in South Africa. The problem came from selling sex on the street and then being arrested by the police. The stance of the ruling party in the country – the African National Congress – was that the calls for the decriminalization of sex work had to be subject to wide-ranging discussions, Mr. Jeffery noted.
The delegation reiterated that the Government had tabled social policy reforms, namely pension reform. Social partners had said that they supported reforms, but that they would pull out unless the Government opened a debate on the category of persons between the age of 18 and 59. As for the low take-up of the child support grant, the authorities were working to address that problem more in the urban areas than in rural areas. Sometimes people thought they did not fulfil the requirements. The Government was looking to align subsidies for the elderly and children. The social protection floor was based on the International Labour Organization’s standard. The authorities were also developing an index on decent living.
The Government’s approach to labour inspections was compliance by employers; fines were a measure of last resort. It was a reality that there was a shortage of labour inspectors due to financial constraints. Only a handful of owners would restrict access to their farms. To address the problem of reprisals against farm workers, the Government had introduced mobile units and it had distributed leaflets in regional languages on workers’ rights. Adjustments to the minimum wage would be done on an annual basis. There were quotas for the employment of persons with disabilities.
Third Round of Questions by the Committee Experts
Had the inter-racial relations in the country reached the level that the Government had hoped for? Had inter-racial marriages increased? Why did South Africa have such a high level of domestic violence, and was it related to the high level of poverty?
What was the minimum age of marriage? Why was there a distinction between girls and boys (16 and 18 respectively)? What was the situation with Muslim marriages? It was confusing to assess what the binding rule was, an Expert noted.
There seemed to be a dramatic difference in the services provided by private and public hospitals and health centres. Some 79 per cent of medical doctors worked in the private sector. Experts further inquired about the health risks associated with the country’s nuclear power plants.
Farmers received advisory services and training on food security. Did that include advice against the use of pesticides and genetically modified food? Experts further inquired about the right to adequate housing, especially in light of people moving from rural and urban areas.
What was the legal period for the termination of pregnancy? There was widespread refusal to perform abortion on the grounds of conscientious objection. Was opioid treatment offered to persons living with HIV/AIDS?
Experts inquired about indirect taxation on consumer products and services, and about the consumer price index.
OLIVIER DE SCHUTTER, Committee Member and Country Rapporteur for South Africa, asked about challenges in registration of birth. Around 10 per cent of children in the country were not registered, which posed serious obstacles in accessing education and social benefits. The Citizenship Act stipulated that children of foreign parents born before 1 January 2013 could not obtain South African nationality. Why was the State using such a restrictive approach?
Could the delegation confirm that marriages resulting from the abduction of young girls (ukuthwala) were not recognized? What was the Government doing to prevent this practice? The Country Rapporteur also asked about virginity testing.
Was the problem of preventive evictions from farms addressed in the amended Extension of Security of Tenure Act? Had the Government decided whether it would support commercial or small farming with its land redistribution reform? Would it provide post-settlement support for farmers?
Mr. de Schutter asked whether there was a discussion on the adoption of a general framework law on the right to food. He also inquired about the conditions in which evictions took place, noting the failure of municipal authorities to provide alternative accommodation.
With respect to the National Health Insurance Bill, how would the new healthcare fund be financed? Did it adopt a rights-based approach, specifying entitlements?
Replies by the Delegation
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, explained that there was much emphasis on protection orders for victims of domestic violence, as well as on public awareness campaigns given the prevalence of the problem in the country. Persons performing religious marriages had to have registered marriage officers to be legally recognized. The authorities were looking at amending marriage laws. The Children’s Act stipulated that a child became an adult at the age of 18, which was also the age when she or he could marry.
South Africa was a multicultural society which embraced cultural differences. Accordingly, virginity testing in the Zulu culture and polygamy were not considered unacceptable. The authorities did not want to impose a single pattern of morality, Mr. Jeffery noted. Turning to ukuthwala, he said that couples could choose to elope, but the authorities did not recognize forced abductions. Female genital mutilation was prohibited, whereas virginity testing of children above the age of 16 could only be done with the child’s consent, and could not be performed on children below the age of 16.
NOZIPHO MXAKATO-DISEKO, Permanent Representative of South Africa to the United Nations Office at Geneva, noted with respect to virginity testing that it was a question of how to harness all cultural differences into a functioning democracy. As for the statement of some Experts that the legacy of apartheid was behind South Africa, the Ambassador cautioned that only the generation that was born after 1994 could claim that the legacy of apartheid was indeed behind them. All those born before 1994 had gone through a divided educational system which inculcated the ideas of white supremacy for white children, and ideas of inferiority for black children.
The delegation stressed that the rights of women in customary marriages needed to be protected. There were inter-racial marriages in the country, but there was no statistical data on their prevalence because the authorities did not record them as such.
South African citizenship was granted if one of the parents was South African, through adoption, or naturalization. Children born in the country to non-South African parents could choose to take up South African citizenship at the age of 18. The country had had a problem with fraudulent birth registrations of children who had not been born in South Africa for the purpose of obtaining social grants. Another problem was inaccessibility in remote areas.
The National Health Insurance Bill envisaged that by 2020 there should be a significant shift in equity and quality of universal healthcare coverage, serving the needs of all, regardless of their social status, the delegation noted. The World Health Organization had encouraged countries to move towards universal healthcare coverage as part of the Sustainable Development Goals. The bill had been open for public comments for three months, but it would also go through another round of public consultations when it went for discussion in Parliament and the National Assembly. The bill was founded on the intention to correct historical imbalances, and to build a socially just society. The bill aimed at providing quality health services throughout the country, including remote areas.
In terms of mental health, a decision by a Pretoria court called for an integrated policy to deal with children with disabilities and prevent them from falling through the cracks. South Africa had a two-tier system of healthcare provision, which was why the National Health Insurance Bill aimed to bring quality healthcare to all citizens, and to address the issue of the majority of medical professionals working in the private sector.
On the conscientious objection to abortion, the authorities were developing relevant guidelines. In addition, the Law Reform Commission was currently reviewing all medical laws to ensure that they were in line with international standards. Women could terminate pregnancy for any reason until 12 weeks, while between the twelfth and twentieth week of pregnancy they could terminate pregnancy for reasons of health, rape or incest.
The provision of free baby milk formula in hospitals had been discontinued in order to promote breastfeeding. The authorities had also conducted broad-based campaigns on the importance of breastfeeding. The basic provisions of the Employment Act allowed working mothers to take breaks to be able to breastfeed.
The Extension of Security of Tenure Bill was awaiting the President’s signature. Those evicted from farms would receive adequate temporary accommodation. Many commercial farmers were lining up to offer land. Persons who had lost land due to past racial laws were black people. In its land reform the Government wanted to achieve an integrated rural economy. The opportunity existed in a recently established inter-ministerial committee to support the development of agricultural land, through budgetary resources and banks loans. As a result of limited resources, the Government would target the poorest segments of society, in particular women and youth, and those already involved in agriculture.
In terms of access to adequate housing, there could not be evictions without a court order. There were currently 13 million people living in informal housing, and some 20 per cent of South Africans lived in inadequate accommodation. Housing subsidies had recently risen three-fold. The rate of urbanization in the country currently stood at 60 per cent. There had been improvements in the quality of settlements, but it had not kept pace with migration. The number of informal settlements remained unchanged. The State had taken a deliberate decision to upgrade the conditions of informal settlements. Courts had initially allowed owners to evict unauthorized occupants. But eventually courts had started ruling that evictions could not be carried out without the provision of alternative accommodation. Municipalities were expected to find resources to provide alternative accommodation. Civil society organizations and the South African Human Rights Commission had been taking part in quarterly meetings to discuss evictions.
NOZIPHO MXAKATO-DISEKO, Permanent Representative of South Africa to the United Nations Office at Geneva, explained that South Africa was one of the largest producer of isotopes in the world, leading to discussions about nuclear safety. South Africa used nuclear energy for peaceful purposes, such as cancer treatments. The country had very robust safety guidelines for workers in nuclear plants.
Follow-up Questions by the Committee Experts
Experts inquired about illicit trafficking of drugs and drug use in South Africa, as well as about the use of cannabis for medical purposes. Another issue raised was the high prevalence of hepatitis C in some parts of the country.
Another Expert reminded that 20 per cent of children were stunted, which raised a concern about malnutrition in the country.
Whereas the recognition of polygamy emanated from the Constitution’s respect for diverse cultural traditions, it at the same time constituted gender-based discrimination, unless women had the right to have several husbands. The same was true of virginity testing for girls and women. What did the Government do when there was a clash with the Constitutional and Covenant provisions?
One Expert observed that the authorities posed many requirements on those who wanted to organize protests, whereas another Expert remarked that South Africa seemed to be too liberal in its application of the right to protest.
Replies by the Delegation
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, reminded that South Africa was a democracy which had to follow what the people wanted, and which had to be mindful of a history in which white people were allowed to exercise their culture, while black people were not. Accordingly, the Constitution recognized both customary and civil marriages. The practices of polygamy and virginity testing were part of the culture of the people of South Africa. The Committee was entitled to its views, but it should also respect the views of the people of South Africa. The use of cannabis was also a cultural matter. The Constitutional Court had ruled that private cannabis consumption should not be criminalized.
It was true that it sometimes took a while for medical professionals to prove dossiers for hepatitis C, the delegation said. Stunting was a matter of concern related to poor diets and low income. The Government took a development approach to that problem.
Responding to Experts’ comments on the right to protest, the delegation shared an example of a recent legally organized protest that had turned violent and had caused great damage to ordinary people. The rights of the victims of protesters also needed to be upheld. The Government could not accept any type of protest at the drop of a hat. Each protest had to be contextualized.
NOZIPHO MXAKATO-DISEKO, Permanent Representative of South Africa to the United Nations Office at Geneva, reminded that many people in South Africa had died for the right to education during the apartheid era. The burning of schools and universities in modern South Africa by protesters could not be justified. As for cultural practices, such as polygamy and payment of dowry, those were issues to be discussed and decided by South African women. The Government’s duty was to open the space for discussion. If women agreed that such practices were oppressive, then the Government would outlaw them.
Fourth Round of Questions by the Committee Experts
Experts inquired about challenges in the provision of free primary education for all, namely the charging of voluntary contributions by free schools, the non-transparent procedure for exemption from fees in fee-paying schools, and children with disabilities and undocumented children. Did the Government have a concrete action plan to ensure the availability of free primary education for children with disabilities? What was the number of children with disabilities outside school, or on the waiting lists? Were there any plans to include children with disabilities in mainstream schools?
Experts emphasized the importance of investment in early childhood education, which was not a segment in which South Africa fared well.
There were about 1.4 million undocumented migrants in South Africa, out of which more than 200,000 were children. Those categories of students were unlawfully denied their access to education. Was there a plan to reverse measures taken against undocumented children and allow them access to education? What measures were envisaged to improved access to schools in remote areas?
Experts further observed high school dropout rates because of teenage pregnancies and weak learning foundations. The right to access to education of young parents seemed to be somewhat secondary. What was the Government’s approach regarding those issues? There were also problems of basic school infrastructure due to budgetary cuts, particularly in rural areas. In terms of privatization of education, there was no robust regulatory framework for the involvement of private actors.
Access to the Internet was higher in urban than rural areas due to high costs. According to one study, the monthly cost of Internet access in Johannesburg and Cape Town was higher than in Zurich or Tokyo, which meant that for many access to the Internet may remain illusory.
Experts observed the lack of protection of endangered indigenous languages. Was there any plan to address that issue through further legislative and administrative measures?
Replies by the Delegation
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, reiterated that there were 11 official languages in South Africa. There was no such thing as Khoisan language; there were many languages and dialects in that group, and the number of speakers was very small.
The head of the delegation stressed that it was illegal to charge fees in no-fee schools. He explained that children with disabilities had a high school dropout rate after the age of 15. The Government was currently reviewing its school transport programme.
On high school dropout rates, the delegation stated that the Government focused its energy on improving foundational knowledge and learner attainment. The revision of the curriculum aimed to be in line with the skill requirements of the twenty-first century. Teachers themselves needed to track what they taught and report on achieved outcomes. In their foundational years, students were taught in their mother tongue, and later they switched to English. The Government was also developing a policy on pregnant learners.
The Second Chance Programme was offered to those learners who had not managed to finish their last year of schooling. The National School Nutritious Programme provided free meals for children coming from households that did not have enough food. The authorities wanted to issue documents to undocumented children in schools, but their parents had not wanted to come forth because of fear of deportation.
As for the protection of indigenous languages, the delegation clarified that the Constitution stipulated support for all 11 official languages and respect for all other languages. The Government encouraged the translation of terminology into African languages. Each Government department was supposed to have a language unit to ensure compliance with the constitutional provisions on languages.
The Government recognized the right to the Internet for all, in particular for the unemployed, the poor and the working class. Major providers provided Internet in no-fee schools, and there were zones of free-of-charge wireless Internet in some cities. However, those initiatives were not sufficient to expand the access to the Internet due to infrastructure challenges and market competition. The control of the Internet was driven by the private sector, which had not been willing to reduce costs. Some 20 million South Africans did not use the Internet. However, a very high number of households used mobile phones, which could help bridge the digital divide.
OLIVIER DE SCHUTTER, Committee Member and Country Rapporteur for South Africa, thanked the delegation for the high-quality dialogue, and acknowledged the country’s struggle with the legacies of apartheid. But, on the other hand, South Africa had a very progressive Constitution, an independent judiciary, and a vibrant civil society. The Country Rapporteur expressed hope that the Committee would be capable of supporting those actors in their endeavours.
JOHN JEFFERY, Deputy Minister of Justice and Constitutional Development of South Africa, thanked the Committee for the level of insight and interest it had shown in the work done by the Government of South Africa. The delegation appreciated the many observations and comments made during the dialogue. The Government had found that the Covenant was making a difference in the realization of socio-economic rights in the country, and it was of the view that the Covenant was not static but a living document. The Government’s VAT rate had increased from 14 to 15 per cent to ensure the sustainability of public finance after large revenue shortfalls in previous years and substantial expenditure pressures. The Government had not increased the corporate tax because it could result in a drastic loss of investments by domestic and foreign capital. The national budget was strongly aligned with socio-economic imperatives, with about two thirds of the 2018 budget being allocated to functions dedicated to realizing constitutionally mandated social rights. The budget was highly redistributive in favour of the poor and low-income families.
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, thanked the delegation for the very interesting and constructive dialogue. She also thanked civil society representatives for their contribution. She stressed that the Committee was not driven by any morality criteria; it was driven by the framework of the Covenant.
For use of the information media; not an official record
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