Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/0067205X231188637 |
| Author | Sandra Liebenberg,Bradley Slade |
| Date | 01 September 2023 |
| Subject Matter | Special Issue: Inequality and Public Law (Part I) |
Special Issue: Inequality and Public Law (Part I)
Federal Law Review
2023, Vol. 51(3) 296–314
© The Author(s) 2023
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DOI: 10.1177/0067205X231188637
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Applying a Human Rights Lens to
Poverty and Economic Inequality:
The Experience of the South African
Human Rights Commission
Sandra Liebenberg*and Bradley Slade**
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.
Accepted 17 February 2023
I Introduction
SouthAfricaisanationscarredbydeeppatternsofpoverty
1
and intersecting racial,
gender and class inequalities.
2
Poverty in South Africa has strong racial and gender
We are grateful for comments on prior drafts of this article by Ros Dixon, Beth Goldblatt; Shanelle van der Berg, Gideon
Basson, and participants in the virtual symposium on Fourth Branch Institutions and Economic Inequality held on
3 December 2021. The helpful comments of two anonymous referees are also acknowledged.
* HF Oppenheimer Chair in Human Rights Law, Faculty of Law, University of Stellenbosch.
** Associate Professor, Department of Public Law, Stellenbosch University.
1. Approximately 25 per cent of the popul ation live below the food poverty line of R624 ($41.75) per person per month, and
55.5 per cent below the upper-bound poverty line of R1335 ($89.30) per person per month. Statistics South Africa, Poverty
Trendsin South Africa: An Examination of Absolute Poverty between 2006 and 2015 (22 August 2017) 14–26. For the inflation-
adjusted three poverty lines in South Africa, see Statistics South Africa, National Poverty Lines (9 September 2021).
2. Statistics South Africa, Inequality Trends in South Africa: A Multidimensional Diagnostic of Inequality (14 November
2019) 34.
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 in-
clusive 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 Constitu-
tion’).
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 Con-
stitution.
9
It consists of eight commissioners who are appointed by the President on the rec-
ommendation 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
3. Statistics South Africa, Men, Women and Children: Findings of the Living Conditions 2014/15 (29 March 2018) 14–7.
4. According to Oxfam South Africa, the average white male CEO earns the same as 461 black women in the bottom 10 per
cent of earners. Oxfam South Africa, Reclaiming Power: Womxn’s Work and Income Inequality in South Africa (Web
Page, November 2020) <https://www.oxfam.org.za/wp-content/uploads/2020/11/oxfam-sa-inequality-in-south-africa-
report-2020.pdf>.
5. See, eg, P Bond, Elite Transition: FromApartheid to Neoliberalism in South Africa (University of KwaZulu-Natal Press,
2005). On state capture and corruption: see Commission of Inquiry Into State Capture, ‘The Judicial Commission of
Inquiry Into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State’,All
Reports (Web Page) <https://www.statecapture.org.za/#>.
6. See Part II below for elaboration.
7. Constitution of the Republic of South Africa 1996 (South Africa) (‘The Constitution’).
8. Ibid, s 38, 172.
9. Ibid s 184. The other ‘Chapter 9 institutions’are: The Public Protector; The Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities; The Commission for Gender Equality; The
Auditor-General and The Electoral Commission.
10. The Constitution (n 7) ss 193(4)-(5); The South African Human Rights Commission Act No 40 of 2013 (‘SA Human
Rights Commission Act’) s 5. The conditions and processes for the removal of a member of a Commission from office are
stipulated in s 194 of the Constitution.
11. The Constitution (n 7) ss 181(2)-(3); The SA Human Rights Commission Act s4.
12. The Constitution (n 7) s 181(5). In addition to the annual report on activities to the National Assembly, section18 of the
SA Human Rights Commission Act imposes further reporting requirements on the Commission in respect of its functions
and investigations.
13. United Nations Office of the High Commissioner for Human Rights and GANHRI, Chart of the Status of National
Institutions (22 July 2022).
Liebenberg and Slade 297
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