Abstract
The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.
I Introduction
South Africa is a nation scarred by deep patterns of poverty 1 and intersecting racial, gender and class inequalities. 2 Poverty in South Africa has strong racial and gender dimensions. 3 The overwhelming majority of those at the bottom of the income and wealth pyramid are black, with black women being the most disadvantaged. 4
These patterns of poverty and income inequality in South Africa have deep roots in the history of land dispossession and systemic discrimination on the grounds of race in all spheres during the colonial and apartheid eras. The stubborn persistence of poverty and economic inequality in the post-apartheid era has also been attributed to insufficiently inclusive and redistributive economic policies as well as systemic corruption and ‘state capture’. 5
The redress of historical injustices 6 and the transformation of conditions of poverty and inequality lie at the heart of South Africa’s 1996 post-apartheid Constitution (‘the Constitution’). 7 The Bill of Rights in the Constitution is renowned for its holistic inclusion of civil and political, economic, social, cultural and environmental rights, all of which are enforceable by the courts. 8
Another key institution with an important role in relation to the Bill of Rights is the South African Human Rights Commission (‘the Commission’). The Commission was established as one of six ‘State institutions supporting constitutional democracy’ in Chapter 9 of the Constitution. 9 It consists of eight commissioners who are appointed by the President on the recommendation of the National Assembly. 10 The independence and impartiality of the Commission is both constitutionally and statutorily guaranteed. 11 The Commission, along with the other chapter 9 institutions, are accountable to the National Assembly, and must report to the Assembly at least once a year on their activities and the performance of their functions. 12 The Commission is currently accredited as an A-rated institution by the Global Alliance of National Human Rights Institutions (‘GANHRI’), 13 indicating that it is fully compliant with the Principles Relating to the Status of National Human Rights Institutions (‘the Paris Principles’). 14
This article analyses and evaluates the Commission’s efforts to apply a human rights lens to manifestations of poverty and economic inequality in South Africa. 15 It commences by analysing the constitutional normative foundations of the Commission’s mandate to address poverty and economic inequality as questions of fundamental human rights. It proceeds to describe the specific powers and functions of the Commission, and the extent to which its findings are legally binding under South African law. Thereafter, it analyses three specific areas of the Commission’s work: (1) its monitoring mandate in respect of socio-economic and environmental rights in terms of section 184(3) of the Constitution; (2) its activities in the spheres of land reform, housing and related basic services and (3) its initiatives to link poverty and economic inequality through its equality and non-discrimination mandate. These three areas have been selected because of their close alignment with the central themes of this article. 16
The article concludes by reflecting on what the experience of the South African Human Rights Commission reveals concerning the contribution that fourth branch institutions (particularly national human rights institutions) can make in bringing a human rights perspective to bear on questions of poverty and economic inequality. It argues that national human rights institutions are well-placed to illuminate the structural drivers of poverty and economic inequality and their disparate impacts on groups experiencing systemic discrimination and disadvantage. However, their effectiveness in this area depends on several factors, including developing a clear vision and strategy and multi-disciplinary staff capabilities. It also requires building a network of relationships with a range of government and civil society stakeholders.
II Constitutional and Legislative Normative Framework
The Constitution establishes a strong normative framework for guiding the Commission’s activities in the areas of poverty and economic inequality. Thus, the preamble of the Constitution proclaims that it was adopted to establish a society based on ‘social justice’, and to ‘improve the quality of life of all citizens and free the potential of each person’. 17 The founding values of the Constitution include ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’, ‘[n]on-racialism’ and ‘non-sexism’. 18 A basic value and principle governing public administration is that ‘[p]eople’s needs must be responded to’, and that services must be provided fairly and equitably. 19
The inclusion of a comprehensive set of economic, social and cultural rights in the South African Bill of Rights represents the most obvious constitutional commitment to the eradication of conditions of poverty. These include rights relating to a healthy environment, access to land, housing, health care services, food, water, social security, education, language and cultural rights. 20 All these rights are judicially enforceable, and the South African courts have developed a sophisticated body of jurisprudence on these rights. 21
Furthermore, the redress of socio-economic disadvantage and economic inequality is facilitated by the strong commitment to substantive equality in section 9 of the Bill of Rights. This commitment is strengthened by an interdependent reading of section 9 and the various socio-economic rights. 22 The Constitutional Court has affirmed the close interrelationship between socio-economic rights and the right to equality and non-discrimination. 23
Section 9(1) states that equality ‘includes the full and equal enjoyment of all rights and freedoms’.
24
It also expressly makes provision for affirmative action (or ‘restitutionary equality’) to ‘protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’.
25
The Constitutional Court has held that all organs of state, and the judiciary, have a positive duty to protect and promote the achievement of equality.
26
According to Moseneke J: [O]ur Constitution heralds not only equal protection of the law and non-discrimination but also the start of a credible and abiding process of reparation for past exclusion, dispossession and indignity within the discipline of our constitutional framework.
27
Legislation has also been passed to prohibit unfair discrimination and promote equality in employment 28 and in all other sectors of the economy and society. 29 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘PEPUDA’) prohibits both the State and private parties from discriminating unfairly on a range of listed 30 and unlisted grounds. 31 PEPUDA also makes provision for ‘socio-economic status’ as a potential prohibited ground of discrimination. 32 Although it has the formal status of a ‘directive principle’, nothing prevents litigants instituting action on this ground, or courts from determining that it is included within the listed or unlisted grounds of prohibited discrimination in PEPUDA. 33 The South African courts have confirmed that discrimination can occur on an intersection of grounds, including poverty or social class. 34
The above matrix of constitutional provisions, legislation and jurisprudence demonstrates that poverty and economic inequality are issues of fundamental human rights in South Africa.
Despite the innovative review and remedial models developed by the South African courts to enforce socio-economic rights and substantive equality, courts are institutionally constrained actors. Their engagement with issues of poverty and economic inequality is constrained by the particular facts and relief sought in litigation, and the separation of powers doctrine. 35 By contrast, a national human rights institution (‘NHRI’) such as the South African Human Rights Commission has a broader mandate to monitor and promote human rights. These mandates empower the Commission to be proactive in researching, investigating, and monitoring the structural drivers of poverty and economic inequality. It can also engage with a broader range of governmental and civil society actors rather than being confined to the parties to litigation. The following section analyses in further detail the specific mandate and powers of the Commission and their legal status.
III The Mandate and Powers of the Commission
In terms of section 184(1) of the Constitution, the Commission has three basic mandates: to promote, protect and monitor the realisation of human rights in South Africa. 36 To enable the Commission to fulfil the mandates as set out in section 184(1), it is empowered in terms of section 184(2) ‘to investigate and report’ on the observance of human rights. 37 Where human rights have been violated, it is empowered to ‘take steps to secure appropriate redress’. 38 It also has the power to ‘carry out research’ 39 and ‘to educate’. 40 Reports on the observance of human rights are generally issued in terms of the Commission’s promotion and monitoring mandate, and are generally advisory in nature. 41
As noted above, the Commission has the power to take additional measures to ensure appropriate redress where human rights have been violated. Such measures include instituting litigation, undertaking enquiries and hearings, and forms of alternative dispute resolution such as mediation. A key question in this context is whether the Commission has the power to make recommendation or issue directives that are legally binding on relevant organs of state or private parties. Relying on the seminal judgement of the Constitutional Court of Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly (‘EFF’), 42 in which the Court held that the remedial action of another Chapter 9 institution, the Public Protector, were legally binding unless set aside by a court, 43 the Commission holds the view that it also has the power to make binding recommendations to redress human rights violations. 44
The question as to whether the Commission has the power to issue binding recommendations was left open in Solidarity v The Minister of Labour and Others (‘Solidarity’), 45 as the case dealt with recommendations issued by the Commission in a research report. The Commission argued, and the court accepted, that its recommendations in this context were intended to be only educative and advisory in nature. In other words, they were not intended as binding directives emanating from its mandate to seek redress for a human rights violation. In contrast, in the case of South African Human Rights Commission v Agro Data CC, 46 the Commission argued that its directives arising from this particular investigation were binding as there were made pursuant to its mandate to secure redress for human rights violations. The High Court rejected this argument, reasoning that the Commission’s constitutional and legislative powers were distinguishable from the Public Protector’s power to order remedial action. The court ultimately held that the Commission did not have the power to issue binding directives or recommendations. South Africa’s apex court, the Constitutional Court, has not yet had occasion to pronounce on the binding effect of the Commission’s directives.
The Commission frequently conducts investigations into human rights violations. These investigations are normally followed by a report with clear recommendations aimed at ensuring that there is appropriate redress. 47 The Commission has also on several occasions successfully approached the courts to protect the human rights of vulnerable groups. 48 Sometimes, the courts have required the Commission to monitor compliance with court orders vindicating the rights of victims. The Commission fulfils these monitoring duties by analysing state reports, and through conducting site visits and interviews. 49
The Commission has also collaborated with other Chapter 9 institutions. An example is the joint investigation with the Public Protector into the widespread unrest in the Alexandra township in April 2019 that was sparked by systemic maladministration and complaints about the delivery of basic municipal services. In its final report, the Commission made wide-ranging findings on human rights issues affecting the residents of Alexandra, 50 while the Public Protector directed its remedial action towards addressing various administrative dysfunctions in the delivery of basic municipal services. 51 The Commission recently conducted a site-visit to assess the progress made following its initial report. The Commission noted that it had not received any reports from relevant organs of state regarding their plans to address the ongoing human rights violations, and that no real change could be seen in Alexandra in relation to service-delivery issues impacting negatively on socio-economic rights. 52
This illustrates that the extent to which the Commission’s investigative recommendations are implemented depends on collaboration by relevant government departments and the social pressure that can be brought to bear by the media, affected communities, and non-governmental organisations. 53 The information and recommendations generated through such an investigation can also be used in evidence should the Commission itself or other stakeholders initiate litigation relating to the subject-matter of the investigation. 54
As is evident from this analysis, the Commission has an extremely broad constitutional and legislative mandate pertaining to human rights. In 2021, the Commission received R 191 739 000 55 from the National Treasury through the Department of Justice. 56 Although the allocation from the National Treasury is often (but not always) supplemented by donations, the Commission has noted that '[r]esource limitations amidst a very broad constitutional mandate for the Commission are always a significant restraint’. 57 The following section examines selected interventions of the Commission in three areas closely related to the themes of poverty and economic inequality.
IV Selected Interventions of the SA Human Rights Commission
A Monitoring Socio-Economic Rights: The Section 184(3) Mandate
Section 184(3) of the Constitution confers an express mandate on the Commission in relation to socio-economic and environmental rights. This provision reads: Each year, the South African Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.
As is evident, section 184(3) does not specify the purpose of this annual request for information from relevant organs of state. The question of the purpose and implementation of this mandate has been a subject of much academic and civil society debate.
The late Prof Christof Heyns was a leading proponent of the inclusion of this provision in the 1996 Constitution.
58
In an article published in 1999, he provided a detailed account of his interpretation of the section 184(3) mandate and how it should be operationalised. In essence, he envisaged the mechanism functioning as a ‘domestic reporting procedure’, mirroring the procedure under the UN human rights treaties, specifically the UN Committee on Economic, Social and Cultural Rights (‘CESCR’).
59
In Heyns’s conceptualisation, the Commission’s role would be complementary to that of the courts, and constitutes a form of ‘soft’ enforcement mechanism. He summarised its value as follows: At the heart of reporting as an enforcement mechanism lies the fact that it creates a duty of justification on the one side and a system of monitoring on the other; a system of introspection and inspection.
60
He envisaged that the section 184(3) mechanism would stimulate organs of state to undertake a systematic stocktaking of the progress they had made over the preceding year in giving effect to the socio-economic rights obligations falling within their mandate. Relevant organs of state would submit annual reports to the Commission according to reporting guidelines prepared by the Commission in relation to each of the seven socio-economic rights referred to in section 184(3). 61 Heyns argued that opportunities should also be provided for civil society organisations to submit information to the Commission 62 and for a process of oral hearings and ‘constructive dialogue’ between relevant government officials and representatives of the Commission. 63 At the conclusion of the process, the Commission would produce a publicly available report assessing the progress made by the relevant organs of state and incorporating recommendations. This report would also be submitted to Parliament. 64
Heyns thus envisaged that, through the section 184(3) mechanism, the Commission could undertake a ‘systematic and comprehensive approach’ to monitoring socio-economic rights realisation. 65 In this respect, its role would be distinct from the more case-specific, reactive role of courts in adjudicating socio-economic rights. 66
The Commission produced nine comprehensive section 184(3) reports broadly following the methodology proposed by Heyns. 67 The last of the reports linked explicitly to the section 184(3) mandate covered the period 2012–2013. 68 In this report, the Commission stressed the importance of ‘continuous assessment and monitoring’ to the achievement of the progressive realisation of socio-economic rights over time. 69 This in turn required a monitoring system that ‘will provide government, and in particular Parliament, with a comprehensive picture in terms of the observance of human rights while ensuring the Commission is pro-active in terms of making recommendations and securing appropriate redress where human rights are being violated’. 70
As at the date of conducting research for this article, the Commission was still sending annual requests to provide information to government departments. However, the responses received are not publicly available (for example, posted on its website), nor has the Commission followed its prior practice of producing a comprehensive public report based on the responses received. Instead, five other subsequent reports are listed on the Commission’s website under the heading, ‘Section 184(3) Reports’. These consist mainly of policy research briefs pertaining to specific rights or themes or, in the case of one report, the implementation of recommendations made in a previous investigation on the right to water and sanitation. 71
The challenges encountered by the Commission in sustaining the more comprehensive approach it initially followed in implementing its section 184(3) mandate can be attributed to several factors. Firstly, a lack of resources and capacity has undoubtedly played a major role, particularly given the breadth of the Commission’s mandate. 72 In 2021, only two researchers were employed in its economic and social rights sub-unit within the Research Department. Secondly, the section 184(3) mandate itself is drafted in very broad terms covering a broad array of potential organs of state. 73 Thus, in principle, ‘relevant’ organs of state would include departments in the national, provincial and local spheres of government, 74 with mandates related to the seven listed socio-economic rights. 75 A third challenge has been the lack of consistent co-operation from government departments, for example, through delayed or non-responses to the Commission’s questionnaires. 76 This has led to the Commission having to resort to the use, or threatened use, of its subpoena powers. 77 Fourth, the Commission has been criticised for producing reports that have been essentially outdated and overtaken by events. Consequently, certain of the assessments and recommendations contained in the section 184(3) reports were of limited practical value in stimulating changes in government policy or providing support for civil society campaigns. 78 Finally, the role of civil society in the monitoring process has been the subject of controversy, particularly in relation to the Commission’s refusal to make the government’s responses to the Commission’s questionnaires directly available to the public. 79
The scaling back of the initial ambitions for the section 184(3) process suggests that the Commission has not developed a coherent vision nor a practicable model for its implementation. Monitoring the progressive realisation of socio-economic rights requires considerable multi-disciplinary skills and capacity to implement effectively. Although the Commission has co-operation agreements with non-government organisations with considerable research expertise in economic and social rights monitoring, 80 it has been unable to translate these methodologies into a practical, sustainable model for the implementation of its section 184(3) mandate.
Certain academic commentators have argued that the international reporting and progressive realisation model for section 184(3) is misconceived and proposed an alternative less resource-intensive institutional model. 81 Klaaren has proposed a model premised on the primary goal of section 184(3) being to promote access to information relating to socio-economic rights — a so-called ‘information promotion model’. 82 He locates this model within new governance frameworks aimed at promoting participation, learning and innovation. 83 According to this model, the Commission’s section 184(3) mandate in respect of socio-economic rights would complement its mandate under access to information legislation. Newman has proposed a similar networked model of information gathering and monitoring involving greater civil society involvement in the monitoring process and ‘micro-studies’. 84 However, the theoretical and practical implications of these alternative models remain undeveloped.
The Commission is not making optimal use of the potentially potent constitutional tool created by section 184(3) of the Constitution to monitor the progressive realisation of socio-economic rights in South Africa on a regular basis. The process of information gathering, analysis, evaluation and the making of targeted recommendations enables the Commission to systematically track progress in the realisation of socio-economic rights over time. Through this process, the Commission could highlight the human rights dimensions of poverty and inequality and promote the mainstreaming of human rights norms and values in public policy-making processes. 85 The Commission’s section 184(3) mandate could also serve as a central node for civil society mobilisation around socio-economic rights and facilitate direct engagement between government officials and impoverished communities. 86 This would contribute to the deepening of participatory democracy in South Africa, another central constitutional value. 87
The following part examines the Commission’s interventions in an area closely linked to the structural causes of economic inequality in South Africa — the unequal distribution of land and other forms of property, housing and related services.
B Land and Property, Housing and Basic Services
1 Land and Property
Colonial and apartheid legislation and policy systematically dispossessed black people of land and housing, thereby entrenching deeply skewed patterns of land ownership as well as tenure insecurity in respect of land and housing. 88 The Bill of Rights obliges the State to take proactive legislative and other measures to achieve equitable access to land, land restitution and reform, and tenure security. 89 In addition, the State is obliged to take reasonable measures, within its available resources, to achieve the progressive realisation of everyone’s right to have access to adequate housing. 90 Evictions and demolitions of housing made without a court order in which all the ‘relevant circumstances’ are considered are expressly prohibited. 91 An enabling constitutional framework therefore exists for pursuing redistributive measures in the areas of land, property and housing.
However, there have been serious systemic failures in the post-apartheid government’s programme of land restitution and redistribution. 92 The unresolved land question in South Africa is deeply implicated in the entrenched patterns of poverty and inequality sketched in the introduction. As the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change headed by Former President, Kgalema Motlanthe, noted, ‘land redistribution is a key element to reducing wealth inequality’. 93 This politically fraught issue has also led to an unsuccessful initiative by the ANC to amend section 25 of the Bill of Rights (the constitutional property clause) to make provision for the possibility of nil compensation for expropriation of land. 94
Tenure security is particularly important in addressing poverty and economic inequality. As the High Level Panel Report noted, ‘[t]here is a fundamental correlation between vulnerable forms of tenure and the geography of spatial inequality and poverty that remains entrenched in South Africa’. 95 The Commission has undertaken various initiatives in the areas of land reform, focussing on the promotion of tenure security for historically disadvantaged groups and communities. 96 These reports also provide broader insights into the realisation of related socio-economic rights such as housing, food and water.
In 2018, the Commission embarked on an inquiry into the impact of rural land use and ownership patterns. 97 This inquiry was specially aimed at examining the impact of existing patterns of rural land use and ownership on, amongst others, socio-economic rights and equality. 98 The Commission recognised that land reform, particularly in rural areas, has the potential to address unemployment and poverty. However, it went further by noting that land reform on its own was insufficient, and that a comprehensive strategy was required to address the viability of rural economies, including housing, health care, and education, amongst others. 99 Despite this acknowledgment, the recommendations in the relevant report are focused primarily on land reform. 100
The Commission has also directly addressed the racial disparities in land ownership in South Africa. For instance, in its submission to the Ad Hoc Parliamentary Committee to amend section 25 of the Constitution to allow for expropriation without compensation, the Commission noted that the ‘existing economic structure … is largely in the hands of a white minority’, and that the skewed property ownership patterns due to colonial and apartheid laws and policies laws have remained largely intact. 101
It is thus clear that the Commission regards the land reform programme — particularly restitution and redistribution — of central importance to achieving substantive economic equality in South Africa. 102 However, the Commission has made clear that it considers the poor implementation of relevant legislation to be the primary cause for the slow pace of land reform, rather than the actual provisions in section 25 of the Constitution relating to expropriation and compensation. 103 It has also emphasised that the land reform programme should include systemically disadvantaged groups such as women, First Nations and people living with disabilities; meaningful engagement with land reform beneficiaries; and the provision of sufficient post-distribution support. 104
The Commission’s interventions in the sphere of land reform have sought to highlight how unequal access to land constitutes a critical structural driver of poverty and economic inequality in South Africa. However, it has not made specific recommendations on how land reform can help redress broader patterns of wealth and asset inequality in South Africa. 105
2 Housing and Basic Services
South Africa’s apartheid history combined with the operation of the land and housing market has resulted in deep spatial patterns of unequal and inferior access to housing and basic services. 106 Almost 30 years since the end of legal apartheid, impoverished black people still tend to be concentrated in informal settlements or low-income housing on the peripheries of South Africa’s towns and cities. 107 They also bear the brunt of insufficient and poor quality basic services such as water, electricity and sanitation. 108 The Commission has undertaken a range of investigations, research projects and policy submissions pertaining to housing and basic services.
In 2014, the Commission produced a seminal report synthesising its research, hearings and monitoring activities pertaining to the rights of access to sufficient water and sanitation. 109 It noted that a range of systemic problems facing local governments had a profound impact on municipalities’ ability to deliver basic municipal services, particularly water and sanitation. These systemic governance failures had a disproportionate negative impact on vulnerable and marginalised groups, such as women and children.
This report was followed in 2015 with an investigative report on housing and municipal service delivery. 110 The Commission emphasised that housing as a human right implied not only the provision of bricks and mortar structures, but also enabled access to other rights such as health and education, as well as economic opportunities. 111 It drew express linkages between poor service delivery to disadvantaged communities and its negative impact on ‘economic integration and … the ability of families to maintain livelihoods’. 112 In its economic and social rights monitoring reports, it has noted the trend to locate housing developments for low-income communities on the outskirts of towns and cities. 113
The Commission has directed several recommendations to state departments within all spheres of government that relate to creating an effective policy framework for emergency and temporary accommodation, low-income rental accommodation and the upgrading of informal settlements. 114 It has also recommended that the relevant state departments put in place proper planning, monitoring and evaluation processes, particularly in relation to budgetary allocations for housing and related services. 115 The Commission has also criticised failures in the implementation of government’s programme for the delivery of free basic services such as water, electricity and sanitation. 116 It observed that government’s free basic services programme is vitally important for poverty alleviation, and has made a number of important recommendations for improving the implementation of this programme. 117
Our analysis shows that the Commission is proactive in investigating, researching, and monitoring access to housing and basic services in South Africa. Its reports contain clear recommendations, and it also monitors the implementation of its own recommendations in certain instances. 118 Through these investigative reports and the accompanying civil society, academic and media engagement, the Commission also helps educate the public on how the failure to provide basic rights, such as water and sanitation, ‘entrench[es] cycles of poverty and inequality’. 119 However, its work in this sphere has tended to focus more on unequal access to specific socio-economic rights rather than directly on the patterns of economic inequality in South Africa.
This lack of direct attention to economic inequality as a human rights issue has been partially addressed through the Commission’s equality mandate, to which we turn next.
C Engaging with Economic Inequality through the Commission’s Equality Mandate
As noted in Part II, the State has enacted legislation to give effect to the constitutional right to equality and non-discrimination in section 9 of the Constitution. In terms of PEPUDA, 120 the Commission has specific powers and functions to assist complainants in instituting proceedings in an equality court, to investigate and to monitor the equality plans of government and the private sector to promote equality. 121 However, these mandates are contained in the chapter of PEPUDA dealing with the positive duty of the State and non-State actors to promote equality. 122 At the date of writing, this chapter had not yet been brought into operation. An Amendment Bill to PEPUDA 123 is currently before Parliament. Significant proposed amendments include expanding the definition of ‘equality’ to include the ‘equal right and access to resources, opportunities, benefits and advantages’. 124 In addition, amendments are proposed to the positive duties in chapter 5 aimed at lessening the administrative burdens on the State, public bodies and constitutional institutions. 125
However, despite the uncertain status of its mandate under PEPUDA, the Commission has engaged extensively with the right to equality and non-discrimination through its general constitutional and legislative mandates in terms of the SA Human Rights Commission Act. The Equality Report of 2017/2018 (‘Equality Report’) represents the Commission’s most direct and comprehensive engagement with issues of economic inequality (‘vertical inequality’) in South Africa. 126 It noted that vertical economic inequality in South Africa was directly related to structural patterns of discrimination on grounds such as race, gender and disability. The reciprocal interlinkages between discrimination on specific grounds and economic inequality were explicitly recognised in the report. 127
The Equality Report documented the deepening of poverty in South Africa in recent years, and its disproportionate impact on groups subject to traditional grounds of unfair discrimination, including on the basis of race, gender, geographic location, age and disability status. 128 For example, it recorded that approximately 64 per cent of the Black African population and 40 per cent of the Coloured population were poor, compared to a mere 6 per cent of the Indian/Asian population group and just 1 per cent of the White population group. 129 The report also noted the extremely high levels of income and wealth inequality in South Africa amongst and within population groups and genders. 130 It observed that wealth equality was greater within the Black African population group than in comparison to any other racial group. 131
In light of these trends, it concluded that there was an urgent need for ‘radical economic transformation’ to redress these patterns of poverty and inequality. 132 It cautioned that the objective of radical transformation should be defined as substantive socio-economic equality, and transformation should be pursued through ‘rights-based (as opposed to purely economic or utilitarian) means’. 133 The report called for a ‘radical shift’ in government’s socio-economic policy from focussing exclusively on the bottom deciles of society to paying urgent attention ‘to redistributing extreme wealth accumulated by the very few at the top decile of society’. 134 It made a number of recommendations to advance this objective such as the adoption of redistributive fiscal policy choices, and avoiding regressive taxes such as increased Value-Added Tax. 135 It called upon the National Treasury to report to the Commission within 3 months of the release of the report on measures to increase tax revenue so as to advance substantive socio-economic equality, whilst minimising any detrimental impact on the rights of the poor. 136 It also recommended that the non-contributory social grant system be expanded to accommodate able-bodied, poor adults — including unemployed youth — who do not currently qualify for a specific social grant or social security. 137
Another key recommendation in the Equality Report was that the Employment Equity Act should be amended to target socio-economic need and disadvantage within the groups of black people, women and persons with disability. 138 These are the three ‘designated groups’ that the legislation requires employers to advance through affirmative action measures. 139 It also recommended the collection of data disaggregated by ethnic origin, language and disability, as well as by socio-economic indicators. 140 Other findings and recommendations related to the improved implementation of Broad-Based Black Economic Empowerment legislation and programmes; special measures specifically designed to promote substantive access to and equality in the higher education sector; improving equitable access to land and the need for the private sector to make a greater contribution to the transformation of the labour market and the economy more broadly.
The release of the Equality Report appears to have given the Commission greater confidence to engage with issues of economic inequality and the policy measures needed to redress it. After its release, the Commission submitted a parallel report 141 to the UN Committee on Economic, Social and Cultural Rights (‘CESCR’) during the review of South Africa’s initial report under the International Covenant on Economic, Social and Cultural Rights. 142 In this submission, it highlighted that South Africa’s gross wealth inequality was of ‘equal, if not greater concern’ to its income inequality levels. It requested the CESCR to recommend that the South African government take cognise of its recommendations in the Commission’s various annual Equality Reports, and in particularly the abovementioned Equality Report of 2017/18.
The Commission’s submission as well as strong civil society parallel reports focussing on issues of economic justice made a substantial contribution to the Concluding Observations (‘COBS’) eventually adopted by the CESCR. The COBS contained robust recommendations pertaining to issues of resource mobilisation, fiscal policy and austerity measures in South Africa. 143 These COBS have in turn been extensively cited in media articles, civil society campaigns on budget justice, and critiques of the fiscal consolidation programme embarked upon by the government. 144 The Commission also submitted a parallel submission on the follow-up report of the South African Government in which it drew attention to the fact that government had not, as recommended by CESCR, developed a composite index on the cost of living in order to benchmark social benefits consistent with the requirement to ensure an adequate standard of living to all. 145 It also submitted that government should adopt a rights-based composite costs of living index which is ‘capable of steering policy to address both poverty and inequality’. 146 Finally, it requested the CESCR to recommend that the government adopt ‘a concrete, costed and time-bound plan for the urgent introduction of a UBIG [universal basic income grant]’. 147 In its assessment of South Africa’s follow-up report issued on 10 November 2021, the CESCR assessed South Africa’s progress both on the composite index on cost of living and access to social assistance for adults between 18 and 59 years as ‘insufficient’. 148
In addition to research reports, the Commission also investigates complaints received regarding violations of the rights in the Bill of Rights, including the right to equality and socio-economic rights. Its Annual Trends Analysis Report 2020–2021 noted that the right to equality and socio-economic rights (specifically access to healthcare services, food, water and social security) remained amongst the top five complaints of rights violations. 149 It also noted an increase in complaints during the national state of disaster during the Covid-19 pandemic related to labour relations, human dignity, education and housing. It highlighted the particularly severe aspect on children during this period due to the closure of schools, unequal access to transport and data and the suspension of school nutrition programmes. 150 In the context of complaints relating to the right to equality, the Commission recorded with ‘grave concern’ that discrimination on the grounds of race consistently remained the most prevalent complaint received. 151 As noted in part II, PEPUDA makes it possible for complaints of unfair discrimination to be instituted on the ground of ‘socio-economic status’ or on an intersection of grounds (for example, gender and socio-economic status). However, the Commission’s analysis of equality complaints per ground of discrimination does not reveal any complaints received on the ground of socio-economic status — either alone or in combination with other grounds. 152
The Commission’s interventions in terms of its equality mandate demonstrates the role that NHRIs can play in applying a human rights lens to poverty and economic equality. The Commission’s Equality Report of 2017/2018 was well-researched and contained several targeted recommendations directed to some of the key structural determinants of poverty and inequality. It did not shy away from interrogating the government’s social and economic policies. For example, it highlighted the role that fiscal policy could play in redressing economic inequality. Its interventions in this sphere were influential in the review of South Africa’s initial report by the CESCR. These interventions also dovetailed with increased civil society and academic interest in South Africa on the relationship between economic policy and human rights. However, the lack of complaints received by the Commission on discrimination on the grounds of socio-economic disadvantage suggests that it could do more to educate the public on the potential of this ground to help redress poverty-related discrimination. 153
V Conclusions
Our analysis demonstrates that the Commission has engaged directly with issues of poverty in South Africa through its section 184(3) mandate as well as its investigatory hearings and reports, and the receipt of complaints related to socio-economic rights. It has also sought to identify the underlying structural causes of poverty and socio-economic disadvantage through its activities in the sphere of land reform, housing and related services. Finally, it has engaged directly with issues of economic inequality through its Equality Report of 2017/2018 and its submissions to the UN CESCR.
The experience of the South African Human Rights Commission illustrates the potential of fourth branch institutions, especially NHRIs, to illuminate the human rights dimensions of poverty and inequality. They are well-placed through their monitoring and investigative mandates, to demonstrate how poverty and economic inequality undermines an array of human rights, and disproportionately affect groups who experience systemic discrimination and disadvantage. Through their outreach and educative work, such institutions can also play a valuable role in educating local communities on public finance and its influence on various social and economic rights. In this context, they can build the capacities of communities to participate in decision-making at various levels, but particularly in the sphere of local government. Finally, through their protective mandate, they can assist individuals and groups obtain redress for human rights violations, particularly in relation to socio-economic rights and the right to equality and non-discrimination. In the exercise of all these mandates, it is helpful to have a strong constitutional and normative framework to guide the work of the relevant national human rights institution. In this respect, the South African Human Rights Commission has the benefit of a strong constitutional normative framework, incorporating socio-economic rights and a strong commitment to substantive equality.
However, to intervene effectively in areas of social and economic policy, national human rights institutions need to develop a clear vision and strategic plan. As we have demonstrated, the Commission has been unable to sustain its initial efforts to monitor and assess, on a regular and comprehensive basis, the realisation of socio-economic rights in terms of its section 184(3) constitutional mandate. 154 This is attributable at least partially to a clear vision and sustainable plan to implement this mandate.
Moreover, as the experience of the South African Human Rights Commission illustrates, most of NHRI’s interventions in areas of poverty and economic inequality will be in the form of non-binding policy and legislative recommendations arising from their monitoring, research, and investigative mandates. As Murray argues, the effectiveness of the legally non-binding interventions of NHRIs will depend on the extent of their legitimacy in the eyes of government and the broader public. 155 This legitimacy requires building a collaborative network of relationships with government, legislatures, communities, civil society organisations and other statutory or constitutional bodies. 156
Particularly when seeking to intervene in areas of social and economic policy, NHRIs are likely to face resistance by powerful public and private decision-makers who regard economic policy as beyond the remit of a human rights institution. In this context, it is vital that their reports and recommendations are grounded in credible research methodologies and are of a high quality. This will in turn require the employment of a staff complement with multi-disciplinary expertise in social policy, statistics and economics alongside traditional human rights competencies. A sound media and communications strategy will also be required to build public understanding and acceptance of the NHRI’s role in this sphere. 157 NHRIs may have relatively more success in engaging with questions of unequal access to socio-economic rights linked to traditional grounds of discrimination such as race, gender, and disabilities. However, as emerging scholarship is demonstrating, discrimination on the grounds of socio-economic status and vertical economic inequality has significant human rights implications. 158 It is thus imperative that NHRIs are accorded adequate human and financial resources to build their capabilities in this vital area.
This analysis of the work of South African Human Rights Commission has illustrated the variety of ways in which NHRIs can engage with issues of poverty and economic inequality. The Commission’s work has undoubtedly contributed to framing poverty and economic inequality as critical human rights issues in South Africa. However, much work remains to be done in developing effective human rights-based strategies to address some of the key structural drivers of poverty and economic inequality in South Africa.
