Address by Public Protector Adv. Busisiwe Mkhwebane during a Social Justice conference at the University of Zululand in Mtubatuba, KwaZulu-Natal on October 23, 2019.
Vice Chancellor, Prof Mtose;
Deputy VC: Research and Innovation,Prof de Wet;
Deputy VC: Teaching and Learning, Prof Mahlomaholo Mahlomaholo;
Deputy VC: Institutional Support, Prof Sipho Seepe;
The rest of the university leadership;
Ladies and gentlemen
First and foremost, let me take this opportunity to thank the organisers for having deemed me a worthy participant in this important dialogue.
It is in these kinds of engagements that solutions to our country’s problems are likely to be found. This is more the case when one considers that this is an academic conference.
What this means is that we have, under one roof, a section of the country’s brain trust with a view to tackling one of our nation’s most polarizing topics. The issue of social justice has, in recent times, truly become a hotly contested subject.
From political parties to labour federations, civil society to thought leaders, and government; everybody has had something to say about land ownership, the ever widening gap between the rich and the poor, the unemployment that is steadily spiraling out of control, the poverty that continues to take root in our society and participation in the economy.
I am certain you will agree with me that these issues go to the heart of social justice, which some define as equal access to things such as quality education, quality healthcare, property, justice and economic opportunities, among other things.
While it is true that the democratic dispensation has done a lot to reverse the imbalances of the past and that undoing the legacy of apartheid is not an overnight job, it is also true that 25 years into democracy, many people remain left behind when it comes to access to basic necessities.
The undisputed fact is that the black majority are the hardest hit. They are by far the most landless, they remain on the wrong side of the inequality divide, they are the most jobless, poverty continues to wear a black face and black people remain largely excluded from economic activity.
This could mean that we have maintained what was the status quo in 1994 more than we have levelled the playing field between the privileged and the disenfranchised.
The irony of all this is that we have a Constitution that is hailed all over the world for its progressive outlook. When we closed the door on apartheid South Africa, we resolved to roll back the frontiers of the oppression of the black majority by their white counterparts in a material way.
This was worked into the Interim Constitution of 1993, into the Constitutional Principles which the Constitutional Assembly had to ensure that they inform the final Constitution and into the laws we have enacted since 1994.
In other words, our Constitution was meant to be transformative as can be seen in the Preamble, which states the following:
“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
· Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
· Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
· Improve the quality of life of all citizens and free the potential of each person; and
· Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.”
What we deduce from the Preamble is that democratic South Africa was always meant to be social justice in action.
The Preamble recognises the fact that, before democracy, people suffered an injustice. There is also the declaration that this country is as much mine as it is yours – all of us, who live in it, irrespective of race, colour or creed.
Most importantly, the preamble makes it clear that our Constitution was adopted for, among others, the following specific purposes:
· to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; and
· to improve the quality of life of all citizens and free the potential of each person.
Given one’s observations of the goings-on in our country today, a quarter century into democracy, one gets a sense that there is a contestation as to whether the divisions of the past have been or are being healed, whether we have managed to establish a society that is based on democratic values, social justice and fundamental human rights.
It is also worth pondering whether we have managed to improve the quality of life of all citizens and freed the potential of each person.
You know the stats. In an edition that showed in the most graphics terms the widening inequalities in South Africa, with an aerial photograph depicting the haves of affluent Hout Bay and the have-nots of Imizamo Yethu in Cape Town, separated by a highway, Time Magazine reported in May that, according to the World Bank, South Africa was the world capital of inequality.
It was estimated that the top 10% richest people in the population owned 70% of the nation’s assets in 2015. The bottom 60%, which was largely black, controlled only 7% of the country’s net wealth.
It was further said that half our population, which is nearly 30 million people, lived on less than $5 or R73 a day. About 6.7million people in the country, who could be working, are languishing at home, jobless.
The raging debate on the question of land expropriation without compensation tells a story of how much unfinished business there is on the matter.
Government communicates day in and day out as to what it, along with its social partners, is doing to address these challenges. It is not for me to say whether there is movement in this regard. I leave that to you.
What is clear though is that we need to change the status quo as soon as possible. Our people have been patient for a very long time but it is clear that their patience is wearing thin. And this calls on government and the private sector as well as private individuals to redouble their efforts to turn the tide.
Should things continue to stay the same, none of us is guaranteed peace. If fact, we have more to lose if we don’t act now than if we do something about these injustices.
For us at the Public Protector South Africa – an independent constitutional institution tasked with investigating, reporting on and remedying improper conduct in state affairs – we see evidence of social injustice every single day.
Contrary to popular belief, the bulk of our caseload is made up of what we term “bread and butter” matters. These are matters such as the provision of housing, water and sanitation, social security, quality healthcare and so forth. These issues largely affect people at the grassroots. By "grassroots", we refer to communities in farming areas, informal settlements, rural villages and townships.
We unapologetically go out of our way to take our services to this strata of society in line with what we call the Public Protector Vision 2023, which is essentially about broadening access to our services as a way of giving effect to section 182(4) of the Constitution. This provision enjoins the Public Protector to be accessible to all persons and communities.
For instance, last month I directed the Head of the Human Settlements Department in Mpumalanga to ensure that a certain Mr. Msibi and one Ms. Mahlangu in the impoverished farming town of Bethal, who applied and waited for 20 years from social housing, are allocated houses.
This was after our investigation found that they were without a roof over their heads not because the processing of their applications for housing had taken long but due to maladministration, which resulted in their houses being allocated to people who had not applied.
In Limpopo, we heard from an indigent 98-year-old granny, who had to go for two long months without water, because the Musina Local Municipality had cut her supply on the basis of false suspicions that she had tampered with the meter.
Officials would not reconnect her unless she settled a penalty of over R13 000, which she could not afford on her old age grant – her household’s only income.
It was only after we proved that the evidence on the basis of which the granny was punished had nothing to do with her water meter that she was reconnected. As we speak, she has running water and no longer has to bother a neighbour who, during the ordeal, let the granny drink and wash at a fee.
We also ensured that the irrational R13 000 bill is written off.
In Gauteng, we saw to it that a 62-year-old Johannesburg nurse is paid R200 000 in compensation for an illness she contracted in the line of duty. This was six years after she tried in vain to claim compensation. The nurse had contracted asthma as a result of the toxic chemicals she was exposed to at work.
In the Free State, a retired police officer, who lives with a disability, got 41 years’ worth of pension benefits within a month of raising the matter with my office. The funds had been withheld by the pension authority after the man’s wife filed for divorce.
During the wait, the man was constantly harassed by creditors, who demanded that he meets his financial obligations.
I could cite many other cases – all of which form part of the 34 000 that we have successfully finalised out of the nearly 50 000 matters that my office was entrusted with between October 2016 and March 2019.
If you look closely at these matters, they talk to issues of access to housing and property ownership; access to clean water; workers’ rights and social security, all of which are fundamental to social justice.
This tells us that, to an extent, the democratic government has itself been complicit in the perpetuation of the incidences of social injustice visited upon the poor and the marginalised.
The people affected by the maladministration referenced in the few case studies above have been fortunate that our remedial action was implemented. Many other people are not so fortunate.
In March, I published a list of close to 40 organs of state that have either refused to implement our remedial action or implemented a portion thereof even when the highest court in the land has said that our remedial action is binding unless set aside by a court of law.
One of these matters is that of the Vhembe Concerned Pensioners group. They approached the Public Protector in 2008, allegeding that the state, in particular the Government Employees Pension Fund (GEPF) and the National Treasury, acted improperly during the privatization of the Venda Pension Fund, resulting in the prejudice of members.
Following an investigation in 2011, it was found, among other things, that the complainants had suffered prejudice as they had been influenced to privatize their pensions benefits but were not properly informed about the consequence of privatization.
Privatisation meant they would forfeit all the benefits of a defined benefit fund such as a spouse’ pension, funeral benefits and orphans’ benefits as well as a medical aid subsidy after retirement.
As a remedy, the Public Protector directed that the Ministers of Public Service and Administration and Finance appoint a task team to review the implementation of Privatisation Schemes of the former Venda Pension Fund.
The task team was to also consider changes to the GEP Law and Rules if required to enable members who participated in the privatization schemes the opportunity to repay the benefits received and to recalculate their pension benefits in terms of the rules regulating normal retirement.
Five years later, on 12 December 2016, remedial action was yet to be implemented, with government citing a number of challenges as impeding implementation, including possible floodgates and the need for clarity for the basis of some of the findings.
I then issued a special report on the same matter, which sought to assist the Treasury to expeditiously implement the old report of November 2011. In the special report, I confirmed the findings of the report of November 2011 and provided guidance on how to resolve the paucity of records on the side of the state.
It was my hope that the special report would resolve the impasse, thus providing necessary relief to restore the lives and dignity of the complainants and their colleagues. I stressed in the report the point that the complainant had already suffered immensely. Many of them are penniless, relying on old age grants while a number of them have already passed away while waiting for justice.
Unfortunately, the Minister of Finance says government will not pay them a cent. He is taking both Adv. Madonsela’s and my special report on judicial review and says that those pensioners, some of whom were Directors-General during their time, should be happy they get old age grants.
We get these kinds of complaints a lot. We are in the middle of our annual roadshow during which we interact with a variety of stakeholders, including the general public and government leaders. Since June, we have already been to Limpopo; Gauteng; KwaZulu-Natal; Northern, Eastern and Western Cape.
During these interactions, we come across some of the most heartbreaking complaints. During a surprise visit to a public hospital in Tembisa, we learned that the facility battles to meet the demand from the community. It serves Tshwane, Ekurhuleni and Johannesburg, including patients from neighboring countries.
As a result, there is overcrowding to the extent that some patients end up having to sleep on the floor or sit up for their entire stay because the beds are not enough. People also complained of waiting for far too long on the queues before receiving medical attention. Tools of trade and medical supplies were the biggest problem. The beds were heavy and couldn't be pushed, thereby posing challenges to staff.
In Worcester, the biggest challenge was the rift between citizens and foreign nationals who work in the farms. Locals were of the view that employers prefer foreigners due to the cheap labour they provide. Where healthcare is concerned, they have problems similar to the community of Tembisa.
One other major challenge that we have observed is the systemic problems brought about by our structure of government. You find that the local sphere of government, which is at the coal face of service delivery, is not funded and has to rely on grants and revenue collected from ratepayers while the national and provincial administrations, which are largely about policy, are handsomely funded.
This creates problems in that municipalities tend to struggle to live up to communities' expectations. People are unemployed and cannot pay for services. This means little revenue is collected and that kind of state of affairs cripples the whole system.
It saddens me that we have this kind of attitude towards the plight of those who should be beneficiaries of transformative government interventions. For me, it is in how we deal with such cases that we demonstrate if we really will realise social justice for the people of South Africa.
It would also be helpful if civil society movements who are always at the ready to take us to court when the interests of the elite are threatened as a result of our work could also do their bit in see to it that there is social justice.
This is only logical because some of them are self-styled crusaders for constitutionalism, justice and freedom. Let them get their hands dirty in the affairs of the poor not just the rich, otherwise their existence becomes suspect.
Adv. Busisiwe Mkhwebane
Public Protector of South Africa