Poverty, human rights law and socio-economic realities in South Africa†

^† The research findings discussed in this article are part of a larger research project, funded by the South African National Research Foundation (NRF). The aim of the project was to determine the level of public awareness and perceptions regarding human rights protection in South Africa. An earlier version of this article was presented as a paper at the Law and Poverty Workshop organised by the Comparative Research Programme on Poverty (CROP) and the Social Science Academy of Nigeria, held in Abuja, Nigeria, 24–26 November 2003.

Abstract

South Africa is a nation of immense variety. It has rich cultural diversity, an enviable climate and an abundance of natural resources. However, it is also a nation with vast economic disparities and a highly unequal distribution of income. Hence, in spite of abundant resources and a seemingly vibrant economy, South Africa still faces an enormous poverty problem that is fundamentally no different from that of other African countries. As in many other African countries this problem of poverty is compounded by the HIV/AIDS pandemic; by high levels of unemployment; by low levels of education; and by a number of other factors. Today, South Africa has one of the best constitutions in the world and a Bill of Rights that contains an array of justiciable socio-economic rights. The South African government has also attempted to alleviate poverty and mitigate its effects through progressively developing and expanding a social welfare system and other programmes such as the Reconstruction and Development Programme (RDP) and the Growth, Employment and Redistribution (GEAR) strategy. The purpose of this article is to analyse the role of human rights (specifically the Bill of Rights in the Constitution) and government efforts to alleviate poverty (through certain programmes and service delivery) in the face of adverse socio-economic realities in South Africa.

^† The research findings discussed in this article are part of a larger research project, funded by the South African National Research Foundation (NRF). The aim of the project was to determine the level of public awareness and perceptions regarding human rights protection in South Africa. An earlier version of this article was presented as a paper at the Law and Poverty Workshop organised by the Comparative Research Programme on Poverty (CROP) and the Social Science Academy of Nigeria, held in Abuja, Nigeria, 24–26 November 2003.

1. Introduction

Poverty is one of those concepts that usually elude definition. It may be simplistically defined as the state of not having, and not being able to get, the necessities of life (Hornby, 1994: 648). Such a definition might seem misleading in a country such as South Africa, a nation of immense variety with rich cultural diversity, an enviable climate and an abundance of natural resources. Unfortunately, South Africa is also a nation with vast economic disparities. The Gini coefficient, which measures the degree of inequality, serves as the starkest indicator of South Africa's unequal distribution of income and wellbeing. The 1996 World Development Report lists South Africa's Gini coefficient at 0,58 (May, 2000: 26). This clearly indicates a highly skewed distribution of income. The development problem of South Africa, described more than a decade ago as being that of ‘poverty amidst plenty’ (Nattrass, 1983: 12), thus remains appropriate to post-apartheid South Africa.

This is obviously a highly undesirable situation for any young democracy. Besides the social and political instability that the existence of extreme wealth alongside poverty brings, sufficient evidence exists to argue that the level of inequality in South Africa may dampen the country's economic growth rate (Bruno et al., 1996: 11). This could also reduce the impact of any achievements that may be realised in employment creation and poverty reduction. It is against this background of harsh reality that Dr Zola Skweyiya, the South African Minister of Social Development, declared poverty as ‘enemy number one of all South Africans’ (Skweyiya, 2003). In effect this declaration was a reflection of his department's commitment to wage a war on poverty.

The purpose of this article is to analyse some of the anti-poverty measures taken by the South African government, particularly in the context of social security and other state programmes. The article also assesses the success or otherwise of these measures in the general context of the socio-economic realities pertaining in South Africa. The role of human rights in alleviating poverty in South Africa is also discussed, and recommendations are made as to how the law and government policy can be used to enhance the provision of social security and improve the livelihoods of poor people in South Africa and other developing countries.

2. Poverty and inequality in South Africa

In order to fight poverty, it is important to understand its foundations and the milieu within which it operates. In South Africa, living standards are closely correlated with race. While poverty is not confined to any particular race, it is concentrated among blacks. According to the Household Survey of October 1999, 52 per cent of black Africans are poor; blacks make up 78 per cent of the population but account for 95 per cent of the poor (Woolard, 2002). Apart from its racial dimension, poverty has a gender component; a female-headed household has a 48 per cent chance of being poor. There is also a strong correlation between educational attainment and standard of living.

The combination of poverty, natural disasters, violence, social chaos and the disempowerment of most rural women form a fertile environment for many social ills, including the transmission of diseases such as HIV/AIDS. Poverty increases the risk of HIV infection through the impact of migratory labour, broken families and economic necessity (Budlender in May, 2000: 114). Correspondingly, illness increases the risk of impoverishment for both individuals and households. Adult deaths from AIDS-related diseases, for example, increased from 9 per cent of the total in 1995–1996 to about 40 per cent by 2000–2001 (Van Aardt, 2002).

South Africa has had a history of segregation and racial discrimination, a system whose policies have left a legacy of inequality and poverty, compounded by low economic growth which persisted until very recently. The apartheid system provided health, education and other services to the white minority at the expense of the black population. Moreover, the system entrenched labour market policies that were aimed at protecting the positions of white workers through policies of job reservation, influx control and other discriminatory legislation such as the Group Areas Act (Act no 41 of 1950). These ensured little competition from other race groups. In addition, apartheid was largely responsible for the unequal distribution of resources (land, minerals and capital) resulting in the relegation of a large sector of the population to menial and poorly paid jobs. The restrictive policies of the past prevented many South Africans from moving upward within the labour market, leading to a highly skewed income distribution, which was in turn reinforced by an unequal distribution of skills and training.

3. State intervention to reduce poverty

In the wake of a new political and constitutional dispensation, the South African government introduced measures to counter poverty, mainly within the context of rural communities. We focus on two broad forms of intervention. The first one is social security, designed to cushion specific groups of vulnerable members of society against the adverse effects of poverty. The second one is the public works programme, designed firstly to provide short-term employment opportunities, secondly to develop and maintain physical and natural resources, and thirdly to give participants the opportunity to develop skills.

3.1 Social security

Social security covers a wide variety of public and private measures that provide benefits in cash or in kind or both. These are provided first in the event that an individual's earning power permanently ceases, is interrupted, never develops, or is exercised only at unacceptable social cost, and that such a person is unable to avoid poverty; and secondly, in order to maintain children (Department of Welfare, 1997). The main domains of social security are poverty prevention, poverty alleviation, social compensation and income distribution. The social security system in South Africa has four major elements:

	private savings people voluntarily save for contingencies such as disability, retirement and chronic diseases
	social insurance – joint contributions by employers and employees to pension or provident funds, or social insurance covering other unexpected events. Government may also contribute to social insurance covering accidents at work
	social assistance – non-contributory and income-tested benefits provided by the State to groups such as people with disabilities, elderly people and unsupported parents and children who are unable to provide for their own minimum needs. In South Africa, social assistance has taken the form of social grants
	social relief – short-term measures to tide people over a particular individual or community crisis. This is also non-contributory and needs-tested.

Our discussion focuses on social assistance and social relief. Interestingly, the South African welfare system has its genesis even before the apartheid era, when social assistance was introduced to support whites. In time, benefits were extended to Coloureds, Asians and Africans, with benefit levels proportionately lower for members of the latter population groups. Pensions were not extended to Africans until 1944. By 1990, however, 67 per cent of old age pension expenditure was going to Africans (Van den Berg, 1997: 487). By 1993, parity of benefit levels for old age and disability grants had finally been achieved between members of different races.

There is no doubt that state grants are an important source of income for the majority of poor households in South Africa. However, the social security system is plagued with implementation problems, particularly for the people living in rural areas. Such problems include, but are not limited to, the following:

	inconvenience in accessing pensions at pay-points, often requiring recipients to wait in long queues for up to two days and subjecting the elderly and disabled to hardship, discomfort, hunger, abuse and humiliation
	delays in processing new applications
	incorrect elimination of many grant recipients during the re-registration drive which was aimed at eradicating ‘ghost’ beneficiaries
	weak methods of making people aware of their eligibility to apply for grants.

In addition to these problems, the social security system has been criticised for excluding the non-disabled unemployed people of working age. Among individuals aged 16–64 who live in households classified as poor, only 22 per cent are employed (May, 2000: 38). Clearly numerous people need, but do not receive, state grants.

3.2 The public works programme

Unemployment is undoubtedly one of the most pressing social problems facing South Africa today. As far back as 1994, it was estimated that 30 per cent of South Africans of working age were unemployed (May, 2000: 53). Today, that situation has not changed in any significant way. Unsurprisingly, the unemployment rate among those from poor households was 55 per cent, compared to a rate of 14 per cent for those from non-poor households (May, 2000: 38). Many institutions called on the state to play a direct role in addressing the unemployment problem through labour-intensive public works programmes. In 1993, the National Economic Forum, an initiative of trade unions and business created to formulate economic development strategies and now superseded by the National Economic, Development and Labour Council (NEDLAC), drew up plans for a national public works programme, which would be spearheaded by the new government in 1994. The objectives of the programme were set out as follows:

	to create, rehabilitate and maintain physical assets that serve to meet the basic needs of the poor communities and promote broader economic activity
	to reduce unemployment through the creation of productive jobs
	to educate and train those on the programme as a means of economic empowerment
	to build the capacity of communities to manage their own affairs, by strengthening local government and other community-based institutions and generating sustainable economic development.

The public works programme, initially hailed by many as a success, gained prominence in many rural, peri-urban and urban communities. However, the change in the macro-economic environment within which the programme operated has necessitated changes in the way in which it was implemented. In particular, the shift from the Reconstruction and Development Programme (RDP) to the Growth, Development and Redistribution (GEAR) strategy has had pertinent consequences for the programme. This is because like most other schemes and strategies for poverty reduction, the national public works programme was conceptualised under the RDP, a populist framework that called for participatory decision-making in development programmes. As part of the RDP, the public works programme reflected this vision in its design by stating that the community, through representative structures, should control the process, including the rate and system of employment as well as choosing who should work on the programme.

These ideals have since been masked by the fiscal discipline dictated by the neoclassical GEAR, whose approach lays emphasis on efficiency, economy and effectiveness in state institutions. Certain state programmes have been privatised, and the responsibility of decision-making placed on contractors. In the recent past, for example, the payment of pensions and public works programmes have been contracted out. This has diminished the role of the development forums and project steering committees that hitherto had overseen such activities at grass-roots level. An accompanying problem is the possibility of institutional hijacking; local elites may use their power, knowledge and networks to reap the greatest benefit from such public–private arrangements. Other problems found in the national public works programme are:

	targeting mechanisms, or the choice of who is actually selected to work on the programmes in communities where many people regard themselves as poor
	a weak delivery system
	a lengthy and complex application procedure
	a weak involvement of local government.

4. Socio-Economic realities in South Africa

The social security system and the public works programmes are obviously welcome interventions in addressing poverty in South Africa. However, these and other attempts to alleviate poverty have to be seen against the background of the socio-economic realities of the country. Some of the most important are listed below.

	Inequality: the stark contrasts in South Africa are reflected in unequal access to such basic necessities as running water from a tap, enjoyed by only 26,3 per cent of the black population but 95,1 per cent of the white population (Department of Social Development, 2000). Similar disparities are the norm regarding access to electricity, housing, health care and other basic services.
	Education: it is estimated that more than 15 per cent of adult South Africans, most of them black, are illiterate (Woolard, 2002).
	HIV/AIDS: out of the total population of just over 40 million people in South Africa, an estimated 4,8 million (over 13 per cent) are living with HIV (UNAIDS, 2004). More than 25 per cent of adults are believed to be HIV-positive. As a consequence, life expectancy fell from 62 years in 1990 to 48 years in 1999. The infant mortality rate has also risen to 45 per 1000 live births and the maternal mortality rate is estimated at 230 per 100 000 live births.
	Food: more than 30 per cent of the people living in South Africa suffer from hunger and malnutrition, a situation that is stratified along racial and class lines (Brand, 2002). As a result, 9,2 per cent of children below 5 years of age are estimated to be malnourished.
	Unemployment: over 30 per cent of South Africans of working age are unemployed (May, 2000: 53). Most of these are black.
	Land ownership: as a legacy of the Land Acts and apartheid, whites owned most of the land in South Africa. At the time of transition to democracy, about 80 per cent of the population was confined to 20 per cent of the land. As a result of the current constitutional imperative to redress the issue of land ownership, the situation has changed somewhat, although most of the land in South Africa is still in the hands of white farmers.
	Housing: the question of housing is naturally related to land ownership and income levels. Many black South Africans live in crowded settlements with poor sanitary conditions. These settlements, if formal, are typically referred to as locations or townships or, if informal, as squatter camps.

In view of the above socio-economic conditions in South Africa, it is difficult to reduce poverty and improve the livelihoods of the people in any meaningful way. This means that a new approach is required; a holistic approach that takes into account human rights law and the role it can play in alleviating poverty.

5. The role of human rights

5.1 The concept of human rights

Unfortunately ‘human rights’, like poverty, is a concept that is difficult to define. However, the United Nations has described human rights as those rights which are inherent in our nature and without which we cannot live as human beings (United Nations, 1987). Further:

Human rights and fundamental freedoms allow us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual needs…. The denial of human rights and fundamental freedoms is not only an individual and personal tragedy, but also creates conditions of social and political unrest, sowing the seeds of violence and conflict within and between societies and nations.

Clearly, human rights are those rights one possesses by virtue of being human. One need not possess any qualification to enjoy human rights, other than the fact that he or she is a human being. This is why human rights law can be used to address poverty, as poverty is a condition that specifically afflicts human beings.

5.2 The law governing human rights in South Africa

The protection of human rights in South Africa revolves around the Bill of Rights in the Constitution (Act no 108 of 1996). The South African Bill of Rights is undoubtedly one of the most progressive in the world. It contains all categories of human rights that are ordinarily included in most international human rights instruments. Among these are the first-generation rights (which include the traditional civil and political rights) and the rather controversial second and third-generation rights (which include social, economic and cultural rights). It is in the social and economic rights that our interest mainly lies, as these are the rights that have a direct bearing on poverty.

The following are recognised as socio-economic rights in the South African Bill of Rights:

	rights dealing with labour relations including the right to fair labour practices, the right to form, join and act together in trade unions and the right to strike (section 23)
	the right to an environment that is not harmful to people's health or wellbeing (section 24)
	property rights (section 25)
	the right of access to adequate housing (section 26)
	the right of access to health care services, sufficient food and water [sections 27(a) and (b)]
	the right of access to social security [section 27(c)]
	the right to basic and on-going education (section 29).

These rights have important social and economic dimensions as most of them reflect specific areas of basic needs or delivery of particular goods and services. The proper enforcement and protection of such rights therefore, would go a long way in addressing issues of poverty.

5.3 The enforcement of socio-economic rights in South Africa

The extent of the enforcement and protection of socio-economic rights has been, and still is, a source of controversy and debate. Indeed, the inclusion of such rights in the South African Bill of Rights was not uncontested. Some legal academics and groups in civil society objected to the inclusion of socio-economic rights in the Bill of Rights on the basis that:

	they were not universally accepted fundamental rights
	they were inconsistent with the separation of powers doctrine because the judiciary would encroach upon the terrain of the legislature and executive
	socio-economic rights were not justiciable; in particular because of the budgetary implications involved in enforcing them.

Some have argued that socio-economic rights ‘are inherently non-justiciable [and] ill-suited to enforcement by the judiciary’ (De Waal et al., 2000: 400). Another argument is that the legislature and executive should be responsible for the protection of such rights. Incorporating them in the Constitution has the inevitable effect of transferring power from these two branches of government to the judiciary, which lacks the democratic legitimacy necessary to make decisions concerning allocation of social and economic resources. Others have argued that there is no principled objection to the inclusion of socio-economic rights in a justiciable Bill of Rights and that the vital issue is the extent and nature of their inclusion (Devenish, 1999: 358).

The South African Constitutional Court considered the argument that socio-economic rights have no place in a Bill of Rights in the First Certification Judgment 1996 (4) SA 744 (CC) and held that although such rights are not universally accepted as fundamental rights, they ‘are, at least to some extent, justiciable; and at the very minimum can be negatively protected from invasion’ (para 78). The court further held that the Constitutional Assembly was permitted to supplement universally accepted fundamental rights with other rights not universally accepted. The Court conceded that socio-economic rights might result in courts making orders which have direct budgetary implications. However, it observed that the enforcement of civil and political rights such as equality, freedom of speech and the right to a fair trial would often also have such implications:

A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view, it cannot be said that including socio-economic rights within a Bill of Rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a Bill of Rights that it results in a breach of separation of powers (para 76).

The argument that socio-economic rights are not justiciable because of the budgetary implications involved in enforcing them is obviously premised on the fact that the protection of such rights is dependent on the availability of resources. So, it is argued, providing for those rights without the resource capacity to ensure their protection is meaningless. This argument was at the heart of the matter in Soobramoney v Minister of Health KwaZulu-Natal 1997 12 BCLR 1696 (CC) which involved an application for an order directing a state hospital to provide the appellant with ongoing dialysis treatment and interdicting the respondent from refusing him admission to the renal unit. The Court held that the appellant could not succeed in his claim and in so holding observed that the resources at the hospital were insufficient to serve the patient's need as there were many more patients suffering from chronic renal failure than there were machines to treat such patients.

This decision would seem to support the orthodox view that the judiciary is incapable of ensuring the justiciability of socio-economic rights and that courts are ill-equipped to enforce and protect such rights. The decision also seems to indicate that the availability of resources is indeed an important consideration when determining the enforcement of a socio-economic right. More significantly, however, it shows that the inclusion of socio-economic rights in the constitution is one thing, and the enjoyment of such rights is yet another. This rather defeatist approach was, however, somewhat reversed in Grootboom v Oostenberg Municipality 2000 3 BCLR 277 (C) which concerned the right to adequate housing. A group of adults and children had been rendered homeless as a result of eviction from their informal dwellings situated on private land earmarked for low-cost housing. Basing their claim on sections 26 and 28(i) of the Constitution, they applied for an order directing the local government to provide them with temporary shelter, adequate basic nutrition, health care and other social services. The applicants succeeded in respect of section 28 (providing for children's rights) but not section 26 (providing for the right to housing). The reasoning of the court in relation to the claim under section 26 was similar to that in Soobramoney. The court found that, in view of the massive shortage of housing and a constrained budget, the respondents had not failed in discharging their duty under section 26. The respondents were attempting to maximise the available resources by implementing a housing programme to redress the shortage. The reasoning of the court in regard to the claim under section 28 was drastically different from that in Soobramoney. According to the court, the right to basic shelter was an unqualified constitutional right, and it was therefore not appropriate to consider whether the state had requisite resources. This would seem to support the view that the courts have the willingness and the capability to enforce socio-economic rights. This view was supported by the Constitutional Court, which, on appeal, applied the test of ‘reasonableness’ and held that the state had failed to meet the obligations placed on it by section 26. This very same approach was adopted by the Constitutional Court in the highly publicised case of Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 703 (CC).

That case was brought by the Treatment Action Campaign (TAC), a non-governmental organisation, in a bid to force government to provide anti-retroviral drugs under the public health-care system. The TAC was specifically demanding that nevirapine, a drug that could reduce by half the rate of transmission from mothers to babies, be freely distributed to pregnant women infected with HIV. They argued that current health policies violated constitutional rights including the right to health care, life, dignity and equality.

The court a quo ruled in favour of the applicants and held that the state had violated the constitutional rights of expectant HIV-positive mothers by not supplying them with free nevirapine. The government decided to appeal to the Constitutional Court. In upholding the decision of the lower court, the Constitutional Court held that the government's policy fell short of compliance with sections 27(1) and (2) of the Constitution. More specifically the finding was that the government had acted unreasonably in (a) refusing to make nevirapine available in the public health sector; and (b) not setting out a time-frame for a national programme to prevent mother-to-child transmission of HIV. The government was therefore ordered to permit and facilitate the use of nevirapine and to remove the restrictions that prevented the drug from being made available for the purpose of reducing mother-to-child transmission of HIV at public hospitals and clinics that were not research or training sites.

The importance and significance of the judgment in this so-called ‘nevirapine case’ cannot be over-emphasised. It did not only show the Constitutional Court at its most assertive thus far, but it also showed the Court's commitment to enforcing both the right of access to health care services specifically, and socio-economic rights in general.

The foregoing discussion highlights the complications involved in implementing and enforcing socio-economic rights, particularly in the South African context. More importantly, however, it demonstrates that the proper protection and implementation of socio-economic rights, not only through legislation but also through the courts, can be an important mechanism of fighting poverty.

The role of human rights law in fighting poverty can be demonstrated further by focusing on two specific constitutional rights that have a direct bearing on the poor. One of these is the right of access to social security provided for under section 27(1)(c). This right is aimed at those individuals in society who are deprived of the means of subsistence in circumstances where they may be unable to support themselves or their families, namely, the poor. Although access to social security is largely determined by social and political factors, legal strategies that engage with the right are necessary. It is interesting to note that shortly before the new constitutional dispensation came into being, the South African government had enacted the Social Assistance Act (Act no 59 of 1992) whose purpose was ‘to provide for the rendering of social assistance to persons, national councils and welfare organizations’. Among the persons (grant beneficiaries) envisaged by the Act were the disabled and the aged. Although the Act has undergone several amendments, it remains ineffectual and inadequate. For example a Committee of Inquiry into a comprehensive system of social security that was established in March 2002 had to acknowledge that the current social security programmes were clearly inadequate; they ‘fail to satisfy constitutional imperatives and thus make the state vulnerable to Constitutional Court challenges’. A key recommendation of the Committee was the phasing-in of a basic income grant for all in South Africa, an issue that has lately dominated civil society and government debates.

The other relevant constitutional right is the right of access to sufficient water [section 27(1)(b)]. In an attempt to give effect to this right, a new radical approach towards the management and distribution of water is reflected in recent national legislation that seeks to address the inequitable situation. The new National Water Act (36 of 1998) is one such statute. The Act is aimed, inter alia, at providing for the fundamental reform of the law relating to water resources. To that end, the government is entrusted with the custodianship of the nation's water and charged with the duty of ensuring that water is ‘protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate’ [section 3(1)].

Another statute that promotes the right of access to water is the Water Services Act (Act no 108 of 1997). While the Act deals with several aspects relating to water, one of its primary objectives is ‘to provide for the right of access to basic water supply and the right to basic sanitation necessary to secure sufficient water …’ [section 2(a)]. Water service institutions, which include local authorities, are specifically obliged to take reasonable measures to realise these rights [section 3(2)].

Although no constitutional challenge specifically addressing the right to sufficient water has come before the Constitutional Court, a small number of cases have been heard before the lower courts. One such case was the case of Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) which concerned the disconnection of water supply on account of arrears in payment. The applicant brought an action for an urgent interdict as a member and in the interests of Bon Vista residents, alleging that the disconnection of residents' water was an infringement of section 27(1)(b) of the Constitution. In coming to the conclusion that the interdict should be granted, the court noted that as the disconnection deprived the applicants of an existing right, the action was prima facie in breach of the constitutional duty to respect the right of access to water and the onus accordingly fell on the respondent to justify such breach. As the respondent had failed to discharge that onus, the court held that the applicant's right of access to water had been infringed and the respondents were ordered to restore the water supply. This case is particularly important, as many poor people are continually subjected to water disconnections for being unable to pay.

It is not only socio-economic rights that have a direct bearing on poverty. Some of the so-called civil and political rights can also be invoked in an attempt to address issues of poverty. One example is section 9 of the Constitution, which provides for the right to equality. In particular, section 9(2) states that:

[e]quality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislation and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

Effectively, the purpose of this provision is to encourage programmes of affirmative action. Although the question of affirmative action has continuously been a source of argument and debate, there is no doubt that its main purpose is to redress past and present inequalities. There is also no doubt that the main beneficiaries of affirmative action are the previously disadvantaged, the majority of whom are the poor. Clearly, then, section 9(2) is an appropriate mechanism of alleviating poverty.

6. Other important realities

Quite apart from the socio-economic realities discussed earlier, the role of human rights law in fighting poverty has to be seen in the context of other important realities. There is no doubt that in order to enjoy any rights one has to have knowledge of such rights. One cannot enjoy or enforce rights that one is not aware of. It therefore goes without saying that the effective enjoyment or enforcement of human rights largely depends on the level of public awareness of such rights and of the mechanisms and institutions through which to enforce them. Correspondingly, human rights law can only play an important role in fighting poverty if people are aware of the relevant rights and how to enforce them.

The results of several research studies portray a rather discouraging picture. In a survey which we conducted in 2003 (Mubangizi, 2004: 147–64), we found that about 33 per cent of the respondents had never heard of the Bill of Rights in the Constitution. The survey, which involved 1 512 respondents, also found that about 57 per cent of the respondents thought that the government had not done enough to make all people aware of the existence of the Bill of Rights. The research study also revealed that many South Africans think that their socio-economic rights have not been sufficiently implemented. The majority of the people think that many South Africans do not have access to adequate housing, health care services, sufficient food, sufficient water and education. They also think that workers are not treated fairly by the government and other employers and that many people live in an environment that is not healthy.

It is also interesting to note that according to this survey, many South Africans are not aware of the various institutions established by the 1996 Constitution that play an important role in the protection of human rights. For example, about half of the respondents (49,7 per cent) claimed they have never heard of the Human Rights Commission or the work it does, less than half (47,8 per cent) have heard of the Commission on Gender Equality and only 44,5 per cent are aware of the existence of the Constitutional Court and the work it does. Asked how they would approach any of these institutions if their rights were violated, 39 per cent said they would not know how. Of those who claimed to know, 20,5 per cent said they would do so directly, 18,1 per cent would do so through a lawyer and 22,3 per cent through a community leader.

The reality that is depicted in the above findings is that many South Africans do not know how to enforce their rights. Accordingly, poverty cannot be adequately addressed through this mechanism, as it is mostly the poor and uneducated people who are likely to be unaware of the Bill of Rights and the mechanisms of human rights enforcement.

7. Conclusions and recommendations

It is clear from the foregoing discussion that government initiatives to fight poverty are fraught with problems. It is also clear that socio-economic realities in South Africa make the task much harder. The role that human rights law can play is unfortunately diminished by widespread ignorance of the existence of the Bill of Rights and the mechanisms of enforcing and implementing the rights therein. It is against that background that the following recommendations are made.

7.1 Monitoring and research

To begin with, although there is no principled objection to the privatisation of pension payments and other public works programmes, there is a strong likelihood of the abuse of these functions driven by the profit motive that characterises private enterprises. There is, therefore, a need for government mechanisms to cushion the poor, marginalised and vulnerable members of society from such possibilities. Outsourcing should not be seen as ‘passing the buck’ by the government. The state should retain the ultimate responsibilities of leading, organising, resolving conflict and monitoring the outsourced activities.

Furthermore, implementing concrete policy actions requires that government develop mechanisms and procedures for gathering and evaluating data on poverty and human development. Such data should be gathered and developed on a regular basis to support measures aimed at alleviating poverty. It is imperative that such research be objective and apolitical. Independent research institutions such as the Institute for Democracy in South Africa (IDASA) and the Health Systems Trust (HST) are objective bodies whose research has not always been taken seriously in the past.

7.2 The role of civil society

The role of civil society in the whole process cannot be over-emphasised. A vibrant civil society that includes non-governmental organisations (NGOs) and other community groups can play a crucial ‘watch-dog’ role in articulating the plight of the poor and in monitoring the state initiatives and outsourced activities aimed at alleviating poverty.

7.3 Basic income grant

Although there has been, and still is, a heated debate surrounding this issue, many people believe that a basic income grant has the potential to reduce poverty and promote human development and sustainable livelihoods, to a greater extent than any other possible intervention for social protection. There is however concern that the conditions necessary for the immediate implementation of a basic income grant do not exist. The capacity within the service delivery system is low and institutional arrangements to ensure effective implementation will take some time to put in place.

7.4 Access to productive resources

Social grants, and all other efforts of the Department of Social Development (formerly Welfare), should be seen as safety nets, or as activities designed to relieve or mitigate the impact of poverty. A fully fledged war on poverty should first address the fundamental societal problems that cause poverty in the first place. The poor need access and control of productive resources such as land, water and minerals. As mentioned earlier, land distribution in South Africa is still skewed along racial lines, with most of the productive land in the hands of heavily subsidised white farmers. Efforts to reduce this skewed ownership in the form of land restitution, redistribution and tenure reform have been frustratingly slow. As these are long-term measures to alleviate poverty, more efforts should be committed to this cause. Land reform should be accompanied by support in the form of programmes to provide skills and financial support that will ensure the productive use of land for subsistence and commercial farming, and consequent food security.

7.5 Confronting HIV/AIDS

HIV/AIDS is a serious problem in South Africa. People in remote rural areas already marginalised by socio-economic hardships have already begun to experience further impoverishment from HIV/AIDS as they incur funeral costs, care for the sick and look after orphans. The war on poverty has become even more complex. All levels and sectors of society need to urgently devise means of incorporating the fight against HIV/AIDS into all aspects of poverty alleviation.

7.6 A pro-poor service delivery system

Because poverty is a complex and multi-dimensional issue, any attempts to deal with it should take a multi-faceted and multi-dimensional approach. In South Africa this would mean engaging different spheres of government and different departments within these spheres in the spirit of intergovernmental relations and cooperative governance espoused in the Constitution (section 41). To this end, coordination of activities for pro-poor service delivery is essential.

Poverty alleviation requires the support of the public sector and civil society to plan, design, implement and monitor poverty alleviation programmes that are effective and efficient. This Community, Public and Private Partnership (or CPPP) model has been actively promoted by the World Bank as a possible solution to poor service delivery in developing countries. However, one particular concern is that the various partners may sometimes have different agendas, which are not necessarily in harmony with the ideals of poverty reduction. There should be agreement among the various role-players on the expectations of each of the partners based on transparency and accountability. There is also a need for continuous monitoring and evaluation of the partnership to ensure that the vision and ideals of the partnership are adhered to.

7.7 Legislative intervention

There is no doubt that legislative intervention is required. The law currently governing social assistance, for example, is inadequate and out-dated. The Social Assistance Act dates back to 1992; although a White Paper for social welfare was published as far back as 1997, legislation emanating from it has yet to see the light of day. In the particular context of human rights law, it has been seen that providing for constitutional rights that are capable of alleviating poverty is one thing, and the actual realisation of such rights is another. This leads us to the final but most important recommendation, namely the need for widespread dissemination of information and for education campaigns. There is no doubt that there is a serious need to educate the public, not only on the Bill of Rights and the processes and mechanisms of its enforcement, but also on the existence and functions of the various human rights institutions. In the words of Nelson Mandela, ‘the experience of South Africans and of all peoples everywhere has taught that in order for the rights and freedoms embodied in constitutions to be realised, they must become a part of the everyday reality of citizens’ lives, and the institutions protecting them must be deeply entrenched' (Mandela, 1998). Only then can human rights law play a meaningful role in fighting poverty.

Notes

^† The research findings discussed in this article are part of a larger research project, funded by the South African National Research Foundation (NRF). The aim of the project was to determine the level of public awareness and perceptions regarding human rights protection in South Africa. An earlier version of this article was presented as a paper at the Law and Poverty Workshop organised by the Comparative Research Programme on Poverty (CROP) and the Social Science Academy of Nigeria, held in Abuja, Nigeria, 24–26 November 2003.