Human Rights Commission pro-poor stance must be applauded

The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.

Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.

Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.

Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.

Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.

I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.

But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?

After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.

The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”

In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):

while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.

One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.

However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.

Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.

A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.

The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.

This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.

What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?

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