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Examination of the Institutional and Regulatory Framework for Corporate Human Rights Accountability in South Africa

Document Cited in Related
Vincent
Published date01 May 2017
Date01 May 2017
DOI10.3366/ajicl.2017.0188
AuthorAbiodun Jacob Osuntogun
Pages158-175
INTRODUCTION

In what seems to be a significant move in addressing the issue of human rights impacts of business at the international level,1 the United Nations Human Rights Council (HRC) endorsed the Guiding Principles on Business and Human Rights (GPs) in March 2011.2 In spite of what may be regarded as the defects in the GPs,3 they have become widely accepted ‘in the area of business and human rights as states, national human rights institutions, multi-stakeholder initiatives, companies, non-governmental institutions (NGOs) and academics … invoked them in various ways'.4

Even though the HRC has endorsed the beginning of another process to address the defects identified in the GPs by commencing the process of establishing an intergovernmental Working Group to initiate the process of establishing a binding treaty for corporate accountability,5 nevertheless the mandate of the Working Group is open ended and the emergence of the expected treaty is certainly a matter for the long distant future.6 Thus the ‘Protect, Respect and Remedy framework of the GPs still remains an indispensable framework in the scheme of business and human rights.7 From the three major principles proffered by the GPs8 as the means of enhancing human rights responsibilities of corporations and protecting individuals, peoples and communities from human rights violations by corporations, the state duty to protect human rights is a very important aspect of the framework.9 Consequently, with regard to the duty of the state to protect human rights the GPs note:

States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.10

This article examines how the South African government has performed this duty by considering the existing institutional framework for corporate human rights protection in South Africa. It examines the questions whether corporations are duty bearers and whether they have responsibilities or obligations to respect human rights HUMAN RIGHTS IN THE DOMESTIC LAW OF SOUTH AFRICA

The post-apartheid era marks the beginning of a good rapprochement between international law, human rights treaties and the legal system of South Africa. As signatories by ratification to most of the international and regional human rights instruments11 the drafters of the 1996 Constitution were meticulous in ensuring that the constitution comply with the obligations of South Africa with regard to international and regional human rights norms.12 It protects the rights of the people to safety such as the right to life,13 security,14 health15 and the environment,16 to human rights in the labour market such as labour relations,17 trade18 demonstrations,19 association20 and against slavery, servitude and forced labour,21 while others are political rights22 to citizenship,23 equality,24 dignity25 and property,26 the rights of children27 to education,28 cultural and communal rights29 and access to justice through the courts and its corollaries.30

The constitution imposes a duty on the state to ensure that these rights are respected, protected, promoted and fulfilled.31 Any act of omission or negligence by the state or any of its organs or agents in ensuring that these duties are effectively protected may result in government liability. In addition, it also provides that the state and its organs and agents including artificial and non-artificial bodies must comply with the provisions of the Bill of Rights.32 Thus in Minister of Safety and Security & another v. Carmichele33 the court held that the state was liable for breach of its constitutional obligations to protect the applicant ‘against invasion of [her] fundamental rights by perpetrators of violent crime’ due to the negligence of its police officers. Therefore these constitutional provisions protect the individuals from the tyranny of the state34 but it is arguable that their essence goes beyond that ‘vertical relationship’ to create a modicum of ‘direct horizontal application’ between two categories of individuals such as the artificial and natural persons in their private relationships with one another.35 It means, therefore, that aside from the state, corporations may be held liable for breach of their obligations arising from these constitutional provisions. However, for that to be possible, regard must be had to the peculiar nature of the rights and their relevance to warrant duties on corporate entities.36

This is because corporations, unlike the state, are not directly answerable for infringement of all the rights enshrined in the Bill of Rights. In Khumalo v. Holomisa37 the court dealt with this issue and spelt out the conditions for direct horizontal application of rights to corporations. In that case, Mr Bantu Holomisa, a politician, sued the Sunday World which published a defamatory statement against him that he was being investigated by the police for his involvement with a gang of bank robbers. The applicants pleaded that the claim did not disclose any reasonable course of action. In support of their application, they argued that the right of freedom of expression in section 16 of the 1996 Constitution was directly applicable in the case despite the fact that the state and any of its organs were not involved in the litigation.38

Indeed, the issue for determination in the case was to consider whether the common law of defamation as developed by the courts was inconsistent with the Constitution. Although, the court dismissed the applicants' case with regard to the interpretation of section 8(2) of the Constitution,39 it is important to note that the court evolved three requirements which could be used to determine direct horizontal application of rights to private parties. Thus the court considered firstly the nature of the parties involved, secondly ‘the intensity of the constitutional right in question’ and thirdly the ‘potential invasion’ of the right in question. The court noted that the right in question could only be infringed by non-state actors rather than by the state or its organs and held that ‘the right to freedom of expression is of direct horizontal application’ in the case in line with section 8(2) of the Constitution.40

The meaning of the second criterion was said to be shrouded in ambiguity.41 However, Currie and De Waal remarked that it might connote the ‘force or strength of the right’42 while David Bilchitz stresses ‘the importance of the right’ as the meaning of the phrase.43 I am of the view that the phrase requires the court to consider the effect of the right on the beneficiaries as well as on the overall objectives of the Constitution itself, before coming to a decision on its applicability.

Despite the criticism44 of that requirement, because of its inapplicability to certain enshrined rights in the Constitution, it is still a good requirement. A critical look at section 8(2) shows that the requirements for the determination of direct horizontal application should change from case to case. The fact that the second requirement does not apply to cases dealing with the rights of citizenship is not a permanent bar to its use in other cases where citizenship is not a major factor as the Constitutional Court applied it in the Khomani case. However, David Bilchitz argues that the third requirement needs further clarification before it can be properly applied.45 According to him, it is important for the court to determine the form and nature of impacts that are sufficient,46 whether they are ‘potential impacts’, ‘actual impacts’ or ‘severe impacts’ or ‘any other form of impact’.47

Be that as it may, there is no doubt that direct horizontal application of human rights to non-state entities through constitutional recognition of corporations as duty bearers is a good step forward in attaining corporate accountability in South Africa.

However, in order to facilitate the implementation of the framework of corporate human rights accountability in the Constitutional provisions, it is essential that responsibilities and obligations to respect human rights be allotted to corporations in South Africa. Consequently, the next section seeks to interrogate the issue whether corporations have duties to respect human rights. If they have, I will examine the nature of those duties and their effects on corporate human rights accountability in general.

 HUMAN RIGHTS OBLIGATIONS OF CORPORATIONS

The South African Bill of Rights aims to provide a binding regime for corporations to obey human rights. To achieve that objective, it makes the Constitution applicable directly to corporations. Consequently, rights of different types are extended to corporations as if they were human beings. Indeed, the effect of that extension of rights is ambivalent resulting, on the one hand, in benefits for the corporations to enjoy and on the other hand in responsibilities or obligations they must respect or bear. However, whether it results in benefits or responsibilities, the fact is that corporations in South Africa are bound to obey rights that are enshrined in the Bill of Rights.48 In addition, every court of justice, including ordinary courts, tribunals or arbitration forums, must take greater cognisance of the Bill of Rights by promoting its ‘spirit, purport and objects’ while...

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