SECURING SOCIO-ECONOMIC RIGHTS
IN SOUTHERN AFRICA:
Learning from practice – improving
strategy
Key points from the plenary sessions of a
conference held in Cape Town
31 August–2 September 2009
Norwegian Centre for Human Rights, University of Oslo
In association with the Legal Resources Centre and
PLAAS [Institute for Poverty, Land and Agrarian Studies,
University of the Western Cape]
Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Executive summary
In 1998, the Norwegian Centre for Human Rights (NCHR) at the University of Oslo, through the Royal
Norwegian Embassy, started funding programmes to advance socio-economic rights (SER) in South
Africa. In 2009, the Embassy announced that the emphasis of its funding would change to suit a new
set of strategic imperatives, in line with its evolving relations with the South African government.
A 2½ day conference was held for NCHR partners and external resource persons from South Africa
and other African countries to examine what progress had been made on SER through litigation,
lobbying and advocacy, social mobilisation, and service provision activities. Participants included
social movement activists, non-governmental organisation (NGO) staff, academics and government
officials.
The first two days concentrated on the SER situation in South Africa. A number of inputs were
presented in plenary for discussion:
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SER and their impact on private law (Sandy Liebenberg, University of Stellebosch);
Social movements and the realisation of SER (Sbu Sikode, Abahlali baseMjondolo);
Social movements, NGO struggles and rights strategies (Steve Robbins, University of
Stellenbosch);
Evaluating the effectiveness of SER interventions (Malcolm Langford, NCHR; Advocate Geoff
Budlender; and Mark Abrahams, University of Cape Town).
Participants had a set of parallel small group discussions on other key issues of SER concern: water;
environment; land and livelihoods; political participation; women’s rights; the challenge of
protecting migrants’ rights and overcoming xenophobia; urban housing and security of tenure; and
lessons from the case of Joe Slovo informal settlement in Cape Town.
On the third day, the focus fell on SER in the broader regional context:
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The Central Kalahari Game Reserve case (Alice Mogoe, Ditshwanelo – the Botswana Centre
for Human Rights);
Land reform in Mozambique (Lourenco Duvane, ORAM, Mozambique);
The situation in Uganda (Christopher Mbazira, Community Law Centre, Uganda);
The International Center for Transitional Justice’s activities in the region (Piers Pigou, ICTJ);
and
The South African government and international human rights instruments (Pitso Montwedi,
South African Department of International Relations and Cooperation).
Broad conclusions of the meeting were as follows:

Improving access to SER interventions depends on deepening democracy; reducing poverty
and inequality; and ensuring that the rights of migrants and refugees are protected.
 Responsible and accountable government is necessary to provide an appropriate legal and
policy framework; ensure adequate implementation capacity; and develop strong and
credible regional institutions.
 Vibrant civil society is necessary to provide ‘voice’ in a way that ensures equal participation
for all; engage in social mobilisation; lobby and advocate; influence policy in association with
academics and NGOs; and litigate where necessary.
 Engagement between civil society and government may take a range of forms, from
dialogue to negotiation to civil disobedience. Some see violent protest as a legitimate
strategy of last resort to deal with intransigent state institutions; others see it is something
which narrows democratic space. If the state responds to violence, it is effectively rewarding
violent behaviour.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Contents
Opening ............................................................................................................................................................................................................. 1
Session 1: How far have we come on socio-economic rights? .......................................................................................................................... 1
Socio-economic rights and their impact on private law ............................................................................................................................... 1
Social movements and the realisation of socio-economic rights ................................................................................................................. 5
Social movements, NGO struggles and rights strategies .............................................................................................................................. 7
Session 2: Socio-economic rights interventions: How do we measure ourselves? ............................................................................................ 9
Measuring progress towards socio-economic rights.................................................................................................................................... 9
Comment: Measuring SER in South Africa ................................................................................................................................................. 12
How we measure, what we measure: Challenges, choices and obligations ............................................................................................... 13
Comments and questions .......................................................................................................................................................................... 15
Session 3 & 4: Working groups I and plenary report-backs ............................................................................................................................. 17
Right to water and environmental rights group ......................................................................................................................................... 17
Land and livelihood rights in rural areas group .......................................................................................................................................... 18
Political participation group ....................................................................................................................................................................... 19
Session 5 & 6: Working groups II and plenary report-backs ............................................................................................................................ 20
Women’s rights group ............................................................................................................................................................................... 20
Migrants’ rights group ............................................................................................................................................................................... 21
Urban housing and security of tenure group ............................................................................................................................................. 22
Session 7: Case study review and plenary report backs .................................................................................................................................. 23
Joe Slovo case study group ........................................................................................................................................................................ 23
Integrating migrants and overcoming xenophobia group .......................................................................................................................... 25
Session 8: SER in the SADC and African region – forging linkages ................................................................................................................... 26
The Central Kalahari Game Reserve case ................................................................................................................................................... 26
Land reform in Mozambique ..................................................................................................................................................................... 28
The situation in Uganda ............................................................................................................................................................................. 30
Support to human rights commissions in Africa ........................................................................................................................................ 30
The International Center for Transitional Justice’s activities in the region ................................................................................................ 31
The South African government and international human rights instruments............................................................................................ 32
Closing session ................................................................................................................................................................................................ 33
Workshop review ....................................................................................................................................................................................... 33
Closing ............................................................................................................................................................................................................. 35
Appendix: Workshop participants ................................................................................................................................................................... 36
Acronyms and abbreviations
APF
ARVs
CALS
CBOs
CKGR
ESTA
LRC
NCHR
NGOs
PIE
PLAAS
RAPCAN
SADC
SAHRC
SCA
SER
TAC
Anti-Privatisation Forum
anti-retrovirals
Centre for Applied Legal Studies, University of the Witwatersrand
community-based organisations
Central Kalahari Game Reserve
Extension of Security of Tenure Act
Legal Resources Centre
Norwegian Centre for Human Rights, University of Oslo
non-governmental organisations
Prevention of Illegal Evictions from and the Unlawful Occupation of Land Act
Institute for Poverty, Land and Agrarian Studies, University of the Western Cape
Resources Aimed and Preventing Child Abuse and Neglect
Southern African Development Community
South African Human Rights Commission
Supreme Court of Appeal
socio-economic rights
Treatment Action Campaign
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
DAY ONE
Opening
May-Elin Stener, Deputy Royal Norwegian Ambassador
The Royal Norwegian Embassy has supported programmes of a socio-economic rights kind since
1998, with a particularly strong focus on this area in the last five years. This programme will end in
2009 in line with a general transformation of Norway’s relations with South Africa. Democracy has
developed over the last 15 years, and we now see our relationship more as one of equals rather than
as a donor-recipient relationship. From now on the main focus of Embassy funding will be on what
we can do internationally with South Africa. We are in discussion with the Department of
International Relations and Cooperation around the possibility of an ongoing human rights dialogue
between our countries and hope those present will be part of such a dialogue. Our future priorities
are likely to be environment, climate change, gender, resource management, energy, good
governance, peace and reconciliation from a regional point of view.
Session 1: How far have we come on socio-economic rights?
Socio-economic rights and their impact on private law
Sandy Liebenberg, Faculty of Law, Stellenbosch University
There is a complex relationship between law and the advancement of social justice. Much of my
research has focused on how socio-economic rights (SER) can stimulate fundamental changes to
legal concepts, institutions and rules to make them more responsive to initiatives aimed at
promoting a more just social ordering in South Africa.
One area of my research is concerned with the way law allocates the distribution of resources to
meet various needs between public and private actors. Much attention in SER advocacy, scholarship
and litigation has focused on the potential of the SER in the Bill of Rights to stimulate the adoption
and implementation of social programmes and policies by the state. The landmark SER cases –
Soobramony, Grootboom, TAC [Treatment Action Campaign], Khosa, Olivia Road, Joe Slovo and
Mazibuko – have concerned the nature and scope of the obligations the SER should impose in
relation to the conduct, legislation and programmes of various organs of state.
Less sustained attention has been paid to the implications of SER to the vast areas of law – whether
common law or indigenous law – formally (but misleadingly) classified as private law. This body of
law is traditionally concerned with the legal regulation of the relationships between private parties –
whether in the sphere of family law (responsibility towards children, marriage, inheritance, etc.),
property law, contractual dealings and liability for wrongful acts (delict). I say this classification is
misleading because, in reality, it is public power – largely in the form of judicial decisions or
legislation – which creates, controls and legitimates this body of law.
Classical liberal legal ideology tends to deny the constitutive nature of public power in private
relationships, and insists on the maintenance of a strict divide and firm boundaries between public
and private spheres (and law). The private sphere is associated with domestic institutions such as
the family and with economic institutions such as the marketplace in modern capitalist societies. The
underlying assumption is that equal, autonomous individuals transact freely with each other. The
family and the marketplace have been regarded in liberal theory as the ‘natural’ institutions for
distributing social and economic resources.
The political theorist Nancy Fraser argues that the effect of relegating the meeting of needs to
domestic or market institutions has a depoliticising effect in social discourses on needs:
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Domestic institutions depoliticize certain matters by personalizing and/or familializing them; they cast
these as private-domestic or personal-familial matters in contradistinction to public, political matters.
Official economic capitalist system institutions, on the other hand, depoliticize certain matters by
economizing them; the issues in question are cast as impersonal market imperatives, or as ‘private’
ownership prerogatives, or as technical problems for managers and planners, all in contradistinction
to political matters.
According to classical liberal political ideology, the main threat to freedom is the power of the state.
However, this fails to account for the relative weakness of many states in the globalised economy
and the relative power of large national and transnational private institutions such as corporations.
Many formerly public services are being outsourced to private companies and public utilities are
being privatised or commodified.
The effect of perpetuating the public/private divide is to immunise the private sphere from the
norms and values of human rights law. Louis Seidman describes how classical liberal rights obscure
the extent to which public and private power are intertwined:
Liberal rights both grew out of, and reinforced, the public-private distinction as the core of Liberal
legal ideology. Liberal rights were almost always conceptualized as claims by private persons against
the state, rather than as claims to state resources to combat private oppression. Claims to Liberal
rights therefore both ignored and obfuscated the extent to which the private sphere was, itself,
constructed by public decisions. The failure to detect state responsibility had the effect of taking off
the table constitutional claims to radical redistribution of ‘private’ resources and power.
More work could be done to expose the implications of traditional private law – personal and family
law, property law and contract law – for the SER entrenched in South Africa’s Constitution.
Personal and family law
Assigning the meeting of certain needs to the domestic sphere has profound gender implications. It
is largely through the unpaid domestic/ caring work of women, particularly in impoverished
communities, that many social needs are satisfied – child care, care for the elderly and the ill, health
care, and water collection. The effect is to alleviate or remove entirely the burden on public
institutions for satisfying the need in question. The need is privatised or familialised rather than
socialised.
In this context, there should be heightened scrutiny of the implications of rules of marriage,
inheritance and maintenance law – whether governed by common law, customary law or statutory
law – for women’s access to social and economic resources.
Court challenges to religious or customary law norms in respect of inheritance rights (Daniels v
Campbell, Bhe v Magistrate, Khayelitsha) or the rights of gay partners (Fourie) have been argued in
terms of an equality paradigm. The substantive and contextual equality jurisprudence that has
emerged from the courts arguably allows sufficient scope for these bodies of law to be exposed to
litigation. In Hassam v Jacobs the exclusion of widows from polygynous Muslim marriages from the
benefits of the Intestate Succession Act was challenged. These cases were largely determined in
favour of the litigants, with the exception of Volks v Robinson, which dealt with the inheritance
rights of cohabiting partners.
The failure to include SER arguments in these cases arguably represents a missed opportunity to
highlight the implications of these private law rules for disadvantaged groups to gain and maintain
access to critical social and economic resources. SER are not exclusively a matter of public law. It is
the responsibility of the state to ensure private law promotes SER.
Property law
Perhaps the area of property law where SER have played the most prominent role has been in
relation to the eviction of people from their homes. In this context, private property rights generally
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
clash head-on with the rights of impoverished groups, particularly the right in Section 26(3) of the
Constitution not to be evicted from their homes without an order of court made ‘after considering
all relevant circumstances’.
Legislation such as PIE [the Prevention of Illegal Evictions from and the Unlawful Occupation of Land
Act] and ESTA [the Extension of Security of Tenure Act] have been enacted to give effect to these
rights, and there have been some very progressive PIE judgments. However, in cases where common
law rules about ejections have been applied, the record is far less progressive. In Brisley v Drotsky,
the Supreme Court of Appeal (SCA) stripped the phrase ‘relevant circumstances’ of its potential to
protect the housing interests of unlawful occupiers. There is no recognition of housing as a human
right. The requirements for ejectment actions have been reduced to the existing common law
requirements.
While it may be argued that this approach has been superseded by the enactment of PIE and ESTA,
the jurisprudence, particularly in relation to ESTA, indicates that the conceptual framework and
doctrines of the common law continue to play a major role in how the courts approach the
interpretation of this legislation. This may be a major factor constraining the development of a
transformative jurisprudence under ESTA.
The record of judgments about PIE is better, but housing rights jurisprudence still pays insufficient
attention to the rights of marginalised people. Evidence about rights should be placed more squarely
before the courts.
The current court challenge to the Communal Land Rights Act is going to be a crucial test of the
extent to which the provisions in the Constitution pertaining to the state’s duty to promote tenure
security and gender equality will counteract the hierarchical decision-making processes created by
the legislation, as well as traditional constructs of exclusive ownership.
Contract law
It is in the sphere of contract law is the sphere that has been least influenced by SER. The courts
have generally endorsed a very high threshold for determining whether oppressive and unfair
contract terms are unreasonable or contrary to public policy or good faith. Even in the postconstitutional era, the courts have frequently cited the dictum of Smalberger JA in Sasfin (Pty) Ltd v
Beukes with approval:
...The power to declare contracts contrary to public policy should, however, be exercised sparingly and
only in the clearest of cases, least uncertainty as to the validity of contracts result from an arbitrary
and indiscriminate use of the power... In grappling with this often difficult problem it must be borne in
mind that public policy generally favours the utmost freedom of contract, and requires that
commercial transactions should not be unduly trammelled by restrictions on that freedom.
Even though the courts have acknowledged that the doctrines of reasonableness, good faith and
public policy in contract law must now be interpreted in the light of the constitutional value system,
there have also been questionable judicial pronouncements elevating contractual freedom to a
constitutional value.
The impact of this approach is clearly demonstrated by the SCA decision in Afrox Healthcare Bpk v
Strydom. This case concerned a challenge to a clause in a contract between a patient and a private
hospital exempting the hospital from liability for the negligence of its staff. After his foot was
amputated, allegedly as a result of negligent post-operative treatment by a nurse employed by the
hospital, the respondent instituted an action for damages against the hospital for breach of contract.
One of the arguments Mr Strydom raised was that the clause in question was against public policy in
that it was not in accordance with the constitutional right to health care services (Section 27(1)(a)).
The Court held that the exemption clause did not directly conflict with Section 27(1)(a) in that it did
not prevent access to health care services. It also held that Section 27 did not prohibit hospitals from
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
insisting on legally acceptable conditions for the rendering of medical services. The respondent
argued that the clause was contrary to the public interest in that it undermined a core value
protected by Section 27(1)(a), namely the rendering of medical services in a professional, nonnegligent manner. The Court rejected this interpretation on the basis that the hospital nursing staff’s
professional conduct was secured by relevant professional codes and the sanction of damage to the
hospital’s reputation and competitiveness, should its staff render services in a negligent manner.
Furthermore, it held that contractual autonomy, which finds expression in the doctrine of strict
enforcement of agreements,1 was a competing value also supported by constitutional values. Thus
the Court held that the exemption clause did not impede access to health care services, nor did
Section 27(1)(a) prohibit the imposition of legally enforceable conditions for the rendering of such
services.
The Court’s reasoning rests on a particularly formalistic and impoverished interpretation of Section
27(1)(a) and the values and interests it protects. Section 39(2) specifically mandates the courts to
transcend a literal interpretation of the relevant provisions and to look at their ‘spirit, purport and
objects’ in order to develop the law.
The spirit, purport and objects of the health rights in Section 27(1)(a) go beyond a claim simply for
minimal access to health care services through public institutions. The right to health in international
human rights law requires the rendering of services to appropriate professional and scientific
standards. The negligent rendering of health care services – whether by public or private institutions
– undermines the very interests and purposes which a right of access to health care services is
intended to protect. These include the protection of one’s life, bodily integrity and health. A
fundamental safeguard in our legal system against the threats to health posed by negligent
rendering of medical services is undermined by the denial of a judicial remedy.
Moreover, the Court provides no substantive reasoning as to why the doctrine of the strict
enforcement of agreements should be should be preferred in the specific circumstances of the case
over the value of ensuring a remedy to those who suffer damages as a result of negligent medical
care. The latter value has its origin in the constitutionally enshrined right of access to health services
– one of the SER which the Constitutional Court has held is fundamental to the transformation
objectives of the Constitution.
Instead of evaluating the public policy considerations relating to the enforcement of the exemption
cause in the light of the special nature of a contract between a patient and a hospital for the
provision of health care services, the Court in Afrox treated the contract in question as simply
another commercial transaction. This was a contract for the provision of a constitutionally enshrined
right and the purposes and the values which this right protects should have played a far greater role
in the Court’s evaluation of the enforceability of the exemption clause. Similarly, the Court should
have taken judicial notice and accorded greater weight to the inequalities in bargaining power
inherent in relationships between health service providers and patients.
Afrox is illustrative of the dominance of a relatively laissez-faire model of contract law even when it
leads to the undermining of constitutional rights and values. The dominant paradigm of classical
liberal contract law also has a far-reaching effect on a range of contractual relationships entered into
by impoverished groups – whether in the sphere of labour law, private law or consumer contracts.
Although greater equity and protection for parties to consumer contracts has been introduced
through the Consumer Protection Act 68 of 2008, the strong influence of classical liberal doctrines of
contract law in South African legal culture is likely to exercise a restraining effect in the
interpretation and enforcement of this legislation.
1
Pacta sunt servanda.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Conclusion
Socio-economic rights have the potential to stimulate fundamental reforms in the core concepts of
South African law. However, if they are to fulfil this potential, we need to be researching and raising
in a more concerted way the impact of these concepts on people’s ability to enjoy meaningful access
to SER.
Some important work has been done in this sphere. This includes: the challenging of excessive prices
charged by pharmaceutical companies for anti-retrovirals (ARVs) and the failure to license generic
manufacture of drugs using competition law; and actions by a consortium of pharmaceutical
companies to resist constitutional challenges to the Medicines and Related Substances Amendment
Act 90 of 1997. A further example is the work that has been done in the field of eviction law and
customary land rights in eroding the powerful hold which concepts of strong and exclusive individual
ownership have in South African legal culture.
While SER should undoubtedly be stimulating the adoption of a range of social programmes, we
should take care not to perpetuate the notion that SER are exclusively about the provision of
benefits by the state to the ‘poorest of the poor’. This ignores the responsibility of the state to the
vast areas of law governing the distribution of resources between various private parties. These
areas of law cannot be neglected if SER are to play a meaningful role in bringing about fundamental
reforms to many of the central tenets of our legal system. The outcome that we should be striving
for is a transformed legal system, in all its dimensions. It is only through fundamental changes to the
underlying doctrinal structures, concepts and institutions of our legal system that we can imagine a
new legal system that is more responsive to the claims of those marginalised by poverty and social
inequality.
Comments and questions

You have argued that certain spheres of law are depoliticising. How has this worked out in
South African context? Have activists primarily defended themselves, with less of a focus on
how the state should be allocating resources? How should public power be used to alter the
socio-economic power structure?
Sandy Liebenberg: SER is often seen too narrowly. Work on customary law and gender, religious
marriages and gender-based violence suggests that the state is not playing enough of a role in the
private sphere to ensure equity and fairness in the private law sphere.
Social movements and the realisation of socio-economic rights
Sbu Sikode, Abahlali baseMjondolo
I stand before you humble and firm. There are all the laws and strategies on the one hand; on the
other is the reality of what happens on the ground. Abahlali baseMjondolo began with a road
blockade in 2005. It was born of hunger, anger and frustration. We organise poor communities,
particularly shack dwellers and rural dwellers (through Abahlali basePulazini). Our politics begins
from the fact that we are human beings. We want to see whether laws on SER can bring about a
meaningful challenge to abuses of human rights.
We cannot divorce law and people’s action to realise SER. Through our relationship with the Centre
for Applied Legal Studies (CALS), the Legal Resources Centre (LRC) and lawyers who have done pro
bono work for us when we face evictions, we understand how the law can help us. With the support
of CALS we are going to the Constitutional Court to oppose the KwaZulu-Natal Elimination and
Prevention of Re-Emergence of Slums Act. But we must strike a balance between technical and legal
contributions to our struggle and taking our struggle to the streets. In the run-up to the FIFA World
Cup, laws such as PIE have not helped us; direct action is what helps us. Even if we run to court,
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
evictions continue, and municipalities and private landowners continue to violate our human rights,
court orders notwithstanding. There it has worked for us to take our struggle to the streets.
Our struggle has not been easy. There are times when we agreed to accept a legal compromise but
the law has failed us. Our leadership has had to balance making our constituency happy and paying
respect to legal opinion. Our problems are not technically made, so they cannot be technically
solved. These are political problems, made politically. We need to begin a new dialogue in which we
do not exclude any sector of our society. NGOs [non-governmental organisations], CBOs
[community-based organisations], legal firms, government and other sectors all have a role to play in
realising SER.
The only language that private landowners and municipalities violating our human rights can
understand is social protest. This is a reclamation of human rights, it is not just violence. The only
language that can be understood clearly and firmly is street language. But this should not exclude
the importance of technical experts. We all need one another.
We have shack intellectuals born of practical politics. This is the politics of every person, the politics
of not having water or electricity, the politics of living in conditions where our children die. This is a
living politics, a living learning, a learning where everyone accepts the view that we are all equal,
that we are all created in the image of God. Everyone must put hands together to realise that
another world is possible. Abahlali has created its own university, a culture of learning to build our
own cadres in our shack settlements, an environment where we build our own leadership. Our
country needs leaders. We have a library to encourage learning in the shack settlements. We in the
‘university of Abahlahi’ sent some of our comrades to the University of KwaZulu-Natal to do the
certificated course in participatory development. Our scholars and students and some of the experts
come together to make sense of the theory that is taught at the university.
Realising SER is a process, not an event; it is something that must be pursued every minute, every
hour, every day. We call for human rights for all. We act rather than speak, but as we act, we must
critique and reflect on our practice. Every sector needs every other sector. Our mandate is to bring
government to the people and people to government. When we began we were seen as a threat to
people in power. We were telling the untold truth, knowing that we might lose our jobs or our lives
to tell that truth.
We are human beings. It is important to create space where we can share, discuss, agree and
disagree; a space to laugh and cry; our own space; a space for poor people to realise their humanity.
We must protect that space from other forces. We are heavyweights in our own spaces. We say who
we are, what we want, and how we want it. We can share our stories and our challenges with
others.
We in Abahlali baseMjondolo and Abahlali basePulazini are reaching a difficult place in our struggle.
We must contribute, as well as make meaningful demands. We are engaging with top officials in the
provincial administration and municipalities. We engage in court. And we engage on the street. The
challenge is to find the right balance between all these elements.
Comments and questions

What will Abahlali baseMjondolo do if it loses the case against the KwaZulu-Natal Slums Act?
Sbu Sikode: As law-abiding citizens we will respect the outcome of the court case, but we will
continue to engage, exhaust every channel and then, if necessary, revert to political action. The
Freedom of Expression Institute has done a lot of work around the right to protest in terms of the
Regulations of Gatherings Act. Shack dwellers understand the Act and what it requires.
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Social movements, NGO struggles and rights strategies
Steve Robbins, University of Stellenbosch
What is the best relationship between class action litigation in support of SER and the mobilisation
of collective political action? When does it makes sense to go the courts, and when do you have to
go to the streets? What are the possibilities and limits of each approach? One critique of litigation is
that it does away with class struggle, and that the logic of the law individualises issues of broad
concern and demobilises people affected by an issue.
Although much has been written about the success of the rights-based social movement Treatment
Action Campaign, the definition of success is not entirely clear. It is not clear how to gauge the
degree of success of TAC or any other social movement that uses litigation and mass mobilisation in
struggles over access to state resources. What measure would one use to assess success or failure?
Would it be a measure of the sheer quantity and scale of resources distributed by the state as a
result of litigation and mobilisation, e.g. the number of houses, people on ARVs, taps, clinics, schools
or hectares of land redistributed? Or would one also have to include less tangible and less
measurable outcomes such as ‘empowerment’ and active citizenship. While it is certainly important
to measure service delivery outcomes, this is surely only a part of the story.
For some political commentators, the recent service delivery protests signalled a profound reduction
or narrowing down of political space rather than an extension of progressive pro-poor politics. For
Azapo’s Mosibudi Mangena, post-apartheid state promises of free water, electricity and housing can
only lead to citizens becoming passive and dependent clients of a paternalistic state. Rather than the
protests being a sign of heightened political consciousness, they are a signal of dependency and
demobilisation; ‘a prison called delivery’. So service delivery protests may not be what they seem.
South Africa’s Constitution is extremely progressive. Its promotion of sexual and gender inequality,
as well as its recognition of cultural, linguistic and socio-economic rights has been lauded within
inside and outside the country. The Constitution is extremely influential internationally. But it has
become clear that constitutionally-enshrined rights are very hard to realise. This is particularly the
case for poor people, for whom ‘rights’ and ‘the law’ seem to be particularly remote and elusive.
Over the past few months there has been a lively debate over the merits and disadvantages of
communities and social movements resorting to litigation in their struggles over access to basic
resources. Mike Muller, the former Director-General of Water Affairs and Forestry, recently argued
that the resort to water rights litigation by NGOs and communities opposing prepaid water meters
and automatic disconnections undermined possibilities for effective political action. This view has
been challenged by Jackie Dugard of CALS and part of the legal team which is representing the
Mazibuko community in its water rights case against the City of Johannesburg. She has argued that,
contrary to Muller’s dismissal of rights-based approaches, in contexts of unaccountable and
inefficient local government structures, litigation can be effective in compelling government to
provide adequate services to the poor. In other words, litigation may be necessary where other
forms of engagement are less likely to succeed. Dugard has acknowledged that recourse to the
courts requires resources and institutional support. Dugard’s analysis implies that, under certain
conditions, ‘lawfare’ may be more strategic than popular protest and public violence, which she
describes as political ‘warfare’.
The extraordinary achievements of TAC in recent years illustrate how litigation and rights-based
approaches can, under certain conditions, contribute towards addressing broader questions of social
justice. This particular social movement’s achievements are of a tangible, and a less tangible kind.
After major social mobilisation was used to put pressure on the state, successful court action was
launched, and the state introduced ARV treatment through the public health system. These results
were a result not only of court action, but strategic use of the media, global support, grassroots
mobilisation in townships, lobbying of international pharmaceutical companies, and lobbying of
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
government. Under apartheid, the government of the time was pressured into dropping influx
control and forced removals through a similar tactical mixture of political mobilisation and litigation.
There are now approximately 900,000 people receiving ARV treatment from the state (but
treatment for prevention of mother-to-child transmission of HIV is patchy). Is this an indicator of
successful litigation? Yes. Although South Africa now has the world’s biggest ARV treatment
programme, this fact alone does not capture the other less tangible and measurable gains of this
rights-based social movement. AIDS activist struggles went well beyond simply pressuring the state
to provide ARV treatment for poor and working class people; it also involved profound
transformation of the identities of its members. In many cases, TAC’s particular brand of social
activism managed to transform the potentially lethal stigma of AIDS into a badge of pride and
courage.
For some people, HIV was a blessing in disguise. This is an apparently shocking statement but, for
many people who were near death when they were diagnosed, life seemed to have more meaning
after they were tested. Rather than producing docile patients and biomedical subjects, TAC created
highly politicised and knowledgeable activists who understood their role as the foot soldiers of a
globally connected, working class health movement. They are now empowered activists with a high
level of treatment literacy who run support groups, among other things.
Receiving treatment has not just given these activists biological life, they have become socially alive.
People I have interviewed have made statements like ‘MSF2 is my mother, TAC is my father’. These
organisations fulfil functions normally associated with the family, because stigma has meant many
HIV-positive people have been ejected from their families and communities.
If we focus exclusively on quantitative indicators such as numbers of houses built and number of
people on ARVs, we can miss less tangible aspects. In the TAC case, litigation together with social
mobilisation produced outcome that is extremely successful. But the Grootboom Constitutional
Court ruling is often portrayed as a hollow victory, given that Irene Grootboom died in a shack and
others like her continue to live and die in shacks without adequate services. But we cannot reduce
the Grootboom case to the facts of her tragic fate. We need to evaluate the long-term consequences
of cases like TAC and Grootboom, taking into account the measurable and less measurable
dimensions and the political implications to be able to decide when it makes sense to take to the
streets and when litigation is appropriate. There are many cases in which human rights litigation
ended up narrowing possibilities for pro-poor outcomes, but it is not clear that popular protests and
public violence on their own achieve better outcomes in terms of service delivery. And our
assessment of success and failure should take into account less tangible outcomes such as
empowerment and political agency.
Comments and questions
Jackie Dugard, CALS: I did not come up with the phrase ‘lawfare vs warfare’ in the article published
in the Mail & Guardian, it is not an either/or. Even though it has embarked on litigation, the AntiPrivatisation Forum (APF) has never said it will respect the rule of law, and there has been mass
destruction of pre-paid water meters. There is nothing to say everything a social movement does
must be legal.
Steve Kahanowitz, LRC: There are some misconceptions around the Grootboom case. Prior to the
hearing, the parties came to an agreement on certain services to be delivered to Wallacedene (the
affected area) immediately. This changed the nature of the case and what was argued. The court
ordered that Chapters 12 and 13 of the national housing policy in respect of in situ upgrading be
implemented, and subsequent cases have ordered that these chapters must be implemented. Since
the judgment, the City of Cape Town and the community have been in consultation around the
2
Médecins Sans Frontières [Doctors without Borders].
8
Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
development of low cost housing in Wallacedene, the biggest low-cost housing development in the
Western Cape. But every problem associated with low cost housing has been seen in Wallacedene.
Sandy Liebenberg: It is not true that TAC is the success story of litigation and Grootboom the failure.
Grootboom has come up in a variety of subsequent cases, e.g. Joe Slovo, where alternative
accommodation is now established as a right. Grootboom is far less successful than TAC in the sense
that it was not supported by a housing rights movement, but it has led to changes to the legal
framework, and it can be argued that Grootboom was more significant.
Session 2: Socio-economic rights interventions: How do we measure
ourselves?
Measuring progress towards socio-economic rights
Malcolm Langford, Norwegian Centre for Human Rights, University of Oslo
General context to question
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The Constitution of South Africa 1996 provided a full panoply of civil and political rights and
a large number of economic and social rights.
Many pieces of legislation invoked socio-economic rights; some had a ‘rights-based’
template.
There has been some socio-economic progress, but levels of poverty and inequality remain
stubborn and increasing in some areas.
One extra-political response was the birth, rebirth and/or reorientation of NGOs, social
movements, trade unions and community organisations. Many invoked rights.
‘Rights’ strategies have won praise and critique, including on the issue of impact.
Discourses are emerging on ‘good’ and ‘bad’ strategy which can vary widely between
location of discourse.
South Africa is not unique in asking these questions – similar in Latin America and South Asia
where comparable conditions exist. Longer US debate on and evaluation of civil rights
strategies.
Specific context to question
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November 2007: Participants at partners’ conference: “How should we measure ourselves?
Should we use indicators for example?”
February 2009: Evaluation of Norwegian-SA Human Rights programme. Controversy over
methodology used for relevance and impact.
2010: Book research project to measure role and impact of SER strategies in South Africa,
including by partners.
Future: What worked? What have we learned? What should be changed? Supported?
Who is being measured?
Non-state actors (organised)
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State actors?
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Social movements;
Associations and unions;
NGOs;
Universities (litigation, research, policy).
9
Human rights commissions;
Regulators;
Authorities;
Donors and international organisations.
Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
What are ’strategies’?
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Civil disobedience;
Policy advice;
Negotiation;
Awareness-raising;
Formal education;
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Litigation defence;
Mobilisation;
Lobbying;
Mass media
Strategic litigation;
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Dissemination;
Research;
Empowerment
experiences
Who evaluates?
Self
Consultant
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Academic
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Focus: Immediate or structural issues
unless organisational crisis or good
leadership.
Critique: too subjective, no time.
Focus: relevance, impact, negative
externalities, principles and ideology,
sustainability and replicability, but also
more on process.
Critique: too complex, too free,
uncommunicable results.

Focus: relevance, efficiency, procedures,
coherence, impact, sustainability,
replicability, visibility, cross-cutting
themes etc.
Critique: too quick, constrained by terms
of reference, too technocratic.
Peers/other actors (e.g. NGOs, government,
communities etc.)
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Focus: principles and ideology,
legitimacy, process, relevance, impact.
Critique: too subjective, too quick, too
anecdotal.
What is impact?
Can we actually measure impact of human rights strategies? Are they a hard or special case?
Yes:
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No:
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Usually an input to a meta-process.
Intangible and public good.
Non-consequentialist.
Emphasis on standing for principles.
Used when other strategies fail.
Need flexibility for changing
circumstances.
Other strategies also constitute inputs.
Alternatives to human rights strategies.
Rights advocates make instrumental
claims for rights.
Five issues of measurement
1. Baseline
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
Subjective – baseline for impact should be determined by strategy aims .Can they be
sufficiently concretised?
Objective – strategy must also substantially relate to human rights – relevance issue.
Types of impact aimed for:

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Direct – improve socio-economic rights realisation
Indirect – improve conditions for realisation (e.g. law, policy, public awareness, substantive
political uncertainty, mobilisation etc) or empowerment/autonomy/participation itself.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
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Unintended –positive or negative effects
2. Time period for expected impact
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Short, medium or long?
Relates to baseline, but what is reasonable?
Decision can substantially affect findings on impact, e.g.
o Brown v Board of Education. This impact took 30 years to be seen, so very different
results would have been seen if the impact was measured in 1973 and again in 1993.
o 2009 evaluations.
3. Causality
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Can we separate out the impact of a human rights strategy from other factors?
Human rights strategies often imnvole many stakeholders and are highly contingent.
They sometimes go with or against a trend.
What baseline and methods are reasonable?
Can we include the absurd and lateral effects in impact analysis? E.g. deliberately failing as a
strategy to make a point about the system.
4. Alternatives

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Whatever impact is found (none or much), can it be evaluated outside a series of
alternatives? The Mazibuko case was only brought to court after five years of civil
disobedience and protest.
Easier if have control models (e.g., one community with support and another without) or a
litany of past failures from other strategies. But it is not always clear.
The weight of of impact results should be determined by knowledge of alternatives
5. Methods

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Disciplines. Law, political science, sociology, anthropology, community development,
economics, history all have different approaches to the question.
Methods – case study, comparative, quantitative, process tracing...
Sources – from interviews to laws, from archives to numbers.
Levels - macro,meso,micro and beyond.
Example: Forced eviction litigation, a posssible quantitative approach

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Obtain a sample of 50 cases taken to court.
Develop a measure of impact (upgraded, remained, relocated, evicted).
Include independent variables to see what was most influential:
(a) rural/urban, (b) presence of social movement/legal centre/NGO/legal aid board
(c) successful judgment (d) type of court (e) size and income of community; (f)
became a public interest test case.
Critique: Need a lot of research; will it pick up qualitative dimensions; how to include
alternative of not going to court and negotiating, for example.
Concluding thoughts

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Keep the woods and the trees in mind – measurement is a tool not an end.
How much do we already know on impact, how reliable is that information and what is the
timeframe?
What types of lessons learned have we drawn from existing information? Is it adequate?
Do organisational objectives need to be reframed to better establish baselines? Or are
logframes another form of tyranny?
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
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The NCHR book project aims to be open-ended picking different strategies and evaluation
tools.
It is important to frame measurement questions which can provide answers that might
suprise us.
Comment: Measuring SER in South Africa
Advocate Geoff Budlender
One of the most hotly contested issues in the negotiations leading up to the adoption of the 1996
Constitution was whether SER should be included in the Constitution or whether they should be
provided for only via government programmes. Conservatives wanted them as government
programmes, progressives wanted them as rights. But it should have been the other way around.
Why was a rights-based approach adopted? What were those rights supposed to achieve? What was
the purpose of having these in the Constitution as rights? The government did want, and still does
want, to provide housing, land, water, medical services, etc. Adopting a rights-based approach helps
us know what to measure along two dimensions.
1. Rights as an instrumental approach to ensuring the flow of benefits. Creating enforceable
rights was believed to increase the probability that government would provide the necessary
benefits and increase the likelihood that people’s living conditions would improve. At the
time it was not fully understood that this would have profound implications on the private
sphere. If these are rights, it is more likely that the benefits will flow. Bureaucrats are usually
happy to say these should not be rights. They argue that the wrong people will get benefits
first, because they go to lawyers. They argue that these rights get in the way of ordinary
people getting these services because it demobilises them.
2. Rights as a view of citizenship. Rights can transform power relations; they are a way of
building democracy; they have the potential to transform people from being passive
recipients of services to active citizens. They impact on the private sphere by potentially
transforming unequal power relations, including gender relations.
If we want to measure the impact of SER interventions, we should try to measure both of these
things. Measuring changes is relatively easy; attributing causality is much more difficult.
Mrs Grootboom received what she claimed – secure tenure and access to basic services. She did not
claim a proper house from government. She got more than the modest claim she made for herself. I
imagine that Irene Grootboom wanted a house; my guess is that the lawyers thought that what they
were asking for was the best that could be achieved. Their legal assessment was the right one. Was
the issue debated between her and her lawyers? After the case she said she felt dissatisfied. When
urgent applications need to be brought, there may not be much engagement with clients.
Grootboom is often described as the case which establishes the right to adequate housing for
everyone, but that is not what the judgment actually says. This litigation changed the terrain
fundamentally when it comes to evictions. Joe Slovo is a lost case for the people who live there, but
the fact that the Constitutional Court suspended the decision of a lower court might have created a
right to alternative accommodation for people threatened with eviction. This is an example of failed
litigation having a powerfully positive consequence. But many eviction cases are never brought to
court. It is most important to track the extent to which issues are not brought to court because that
is a measure of the transformation of power relations.
Measuring the extent to which power relations have been transformed by SER interventions is
difficult, but very important. If rights are mobilising, everything will follow. If they are demobilising,
nothing will happen unless there is a benevolent government in place.
We must recognise the paradox of our constitutional rights – they are both empowering and
constraining. Rights define what my entitlement is, but defining my entitlement excludes everything
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
to which I am not entitled. Courts are there to mediate conflict and keep things going. There is a
fundamentally conservative element to what they do. There is no quantitative measure of the
degree of transformation in society. Rights will not bring about a revolution. They will bring about
some changes, some fundamental, but they will not change the structure of society because the one
thing that courts do not do is make revolutions.
How we measure, what we measure: Challenges, choices and obligations
Mark Abrahams, Centre for Open Learning, University of Cape Town
Challenges
Organisations engaged in SER interventions use several or all of these strategies:

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Civil disobedience
Litigation
Awareness raising
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Formal education
Policy advice/ lobbying
Mass media
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Empowerment
experiences
Research
Complexity of the problem – inter-related with long histories
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Housing – house, shelter, adequate housing?
Housing, maintenance, affordable housing.
Affordable and safe transport.
Right of taxi owners to ply trade – competition between government departments and
private sector.
Living wage/ right to employment – double digit wage demands.
Health care.
Complexity/ simplicity of the intervention

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Multi-pronged approach of the intervention:
o Civil disobedience
o Litigation
o Awareness raising, formal education.
Opportunistic – seeking the gap, platform.
Vying for attention among many other rights.
Sometimes dictated by the availability of resources (donors/ volunteers).
Interventions involve people as leaders, trainers, facilitators, advocates and recipients/clients

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Dynamic leaders inform/ dictate/
influence/ manipulate strategies.
From voluntarism to employment.
Mixed messages in large scale
interventions.

Mixed sets of values operating
simultaneously.
Organisational politics.
Target group often less empowered/ vulnerable
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Limited capacity (not lack of).
Limited social capital (not lack of).
Limited access to appropriate resources.
Debilitating/ disabling contextual
environment.
13
Constraining traditional practices.
Differing agendas – human rights vs.
food on the table.
Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Anatomy of social programmes3
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Intervention as theory (e.g.
shackdwellers’ university).
Interventions as active.
Intervention chains are thickly
populated.
Intervention chains are non-linear, can
go into reverse.


Interventions are embedded in multiple
social systems.
Interventions are leaky (change over
time).
Interventions are open systems and
change the conditions that make them
work in the first place.
Programme logic model
Elements of programme flow
Impact evaluation (ultimate effects and results)
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The combined result of various effects or outcomes that together produce the benefits to
the users.
The basic aim of impact evaluation is to produce an estimate of the net effects of an
intervention – i.e. an estimate of the impact of the intervention uncontaminated by the
influence of other events or processes that may also affect the behaviour or changes that a
programme is directed (Freeman & Rossi).
An evaluation can look at the impact of an intervention on the final outcomes, rather than
only the project outputs, or be a process evaluation which focuses on implementation.
An evaluation is concerned with establishing the counterfactual, i.e. the difference the
project made (how indicators behaved with the project compared to how they would have
been without it).
Choices

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3
Be clear in the purpose of the evaluation!
A comprehensive evaluation involves assessing inputs, processes, implementation, outputs,
outcome and impact.
Decide if it is to be process, outcome or impact evaluation.
The latter is demanding but not impossible depending on how it is defined and the
programmatic context.
Pawson, 2006.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
The notion of a “good enough” design

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Ethical and practical constraints often make randomised experiments impossible.
Time and resource constraints always limit design options.
The importance and intended use of the evaluation often determines the choice of design.
Ultimately the optimal design is a trade-off between these constraints.
Possible tools for policy coherence evaluation
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Programme evaluation theory.
Meta-evaluation theory.
Theory based evaluation
Case study methodology.
“New public management”.
Objectives based evaluation
Results oriented approaches
Impact assessment methods
Obligations4
Evaluators can simultaneously find themselves assuming diverse roles as:

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Detective determining project processes and outcomes.
Activist documenting programme quality.
Critical friend helping identify strengths and weaknesses.
Coach or consultant helping in improvement processes.
Mediator among contentious stakeholders.
Advocate or public relations agent helping to protect.
Devil’s advocate challenging staff.
Spy after information they may prefer to keep back.
Schizophrenic in trying to balance many tasks.
Smith (1994) on evaluation
“Let me state what I look for: a sense that the evaluator was present over a long enough period and
close enough to the action and to the participants’ meanings; informed by some system of theoretical
ideas about the social and educational substance of the program; adept at the ethical, political and
personal relationships that qualitative methods make inevitable; successful in sampling widely with
multitude indicators and methods; adept at forms of representation.”
Comments and questions
Children as a lens for evaluation

SER strategies may have unintended consequences for children, and measurement of impact
should take this into account. A children’s lens should be applied from the research phase all
the way through to strategies and action.
A holistic approach

SER may be realised in one area at the expense of another, e.g. if the aim of an intervention
is to see more children in school, the unintended consequence may be less food at home.
Evaluating SER litigation strategies

4
We tend to assume that we will be able identify the kinds of cases we should be taking
forward on the basis that these choices are informed by substantive debate. This may be the
case in areas as land reform, but is not always true in other areas of SER. An evaluation
Mabry, 1998.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

might describe the litigation on ARVs as a success, but there are currently provinces that are
not providing these drugs. Can this really be described as a success?
Evaluation of litigation that involves social movements should include the extent to which
the litigation process was initiated and whether it impinged on the political space that the
social movement occupies.
Mark Abrahams: An evaluation of the impact of litigation strategies would have to look at the
specifics of each case.
Malcolm Langford: Evaluating litigation as a strategy should take into account those cases that are
settled before proceedings begin (the so-called ‘shadow of the court’), but it is very difficult to keep
track of those.
SER as both empowering and limiting
Malcolm Langford: As Geoff Budlender has pointed out, rights can be both empowering and limiting.
In the Nordic context, they build social welfare states without explicit mention of rights. There, the
political space was transformed by political imagination to create the kind of societies that go
beyond what has been achieved in many other places.
Looking backwards

It is possible to do ‘backward evaluations’ – to start with a change that has occurred, and
then to establish what caused it.
Evaluation and migrants’ rights

When it comes to migrants, the South Africa rights discourse is counter-productive,
particularly when there is a discrepancy between formal legal rights and rights in practice. A
refugee claiming rights might be killed.
SER are inherently political

Rights are not necessarily tied to one set of meaning, or the way liberal societies view them.
There might be alternative versions of what is possible in societies. We have the ideal of
equal rights for all people on the one hand but market-based approaches are fundamentally
unequal. Rights are inherently political, no matter how much we try to constrain them by
law-based strategy.
The right to participate

Evaluation should take into account the procedural right to participate because this is where
the rights debate interfaces directly with transformation and social mobilisation. The Interim
Protection of Informal Land Rights Act may be the only piece of legislation on the statute
book that does not provide for someone else to decide what is good for people. Procedural
participation is not entrenched as a right partly because Constitution only requires a rational
decision.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Session 3 & 4: Working groups I and plenary report-backs
Right to water and environmental rights group
Panelists: Jackie Dugard (CALS); Rachel Wynberg (University of Cape Town); Helgard Muller
(Department of Water Affairs); Shereza Sibanda (Inner City Resource Centre).
Key discussion points
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5
National government, specifically the Department of Water Affairs, is reluctant to step in
where there are serious water and sanitation problems at local government level, even
where these represent serious threats to human health. E.g. the Emfuleni municipality is
allowing raw sewerage to flow into the Vaal River.
The current constitutional model of spheres of government promotes decentralisation to
the lowest level, even when it cannot work. Small municipalities are saddled with having to
provide water and sanitation services beyond their technical and financial means. (They are
unable to cross-subsidise services to the same extent as larger municipalities.)
Experience from the Mazibuko water meter case shows that a key challenge for lawyers
engaging in litigation to defend the rights of a poor community is to retain connections with
the community they represent. Relying on a social movement or CBO to keep this
connection alive may or may not work.5
The amount of time and money involved in SER litigation may be massive – five years and a
very large amount of money in respect of the Mazibuko water case.
The Johannesburg municipality is refusing to enter into direct water supply agreements with
tenants in derelict buildings in the inner city. Whenever landlords do not pay the council, the
water supply is cut off. Many landlords receive money for water from their tenants but fail
to hand the money over. The municipality is harassing poor people in the inner city with no
end in sight.
Environmental degradation in South Africa is very serious. Although there are good policies
in place, implementation is poor.
The outcome of the Biowatch case in the Constitutional Court was hugely significant for all
organisations acting in the public interest because it means they can engage in litigation
without the chilling effect of a possible costs order against them.
Environmental NGOs have technical knowledge about environmental degradation, but their
ability to make this relevant to poor people who suffer the most severe impacts of
environmental degradation needs to be improved.
The term ‘community’ is problematic, because it is a homogenising discourse that does not
take into account complex power differentials within communities, e.g. landlords and
tenants, and gender disparities.
Given resource limits, there should be a high-level strategic assessment of the benefits of a
particular course of action, e.g. which litigation cases will unlock the most significant
benefits for the biggest number of people. A related point is that a filtering mechanism is
needed to ensure that issues of a local nature are dealt with at that level. The water caucus
performs this function in this sector.
Courts are reluctant to accept qualitative research as evidence, and quantitative research is
extremely expensive to undertake. Qualitative research may be more relevant in specific
cases.
The case is currently before the Constitutional Court.
17
Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Land and livelihood rights in rural areas group
Panelists: Ruth Hall (PLAAS); Ben Cousins (PLAAS); Musa Zakwe (Association for Rural Advancement
– AFRA); Betty Hattingh (Legal Aid Clinic, Stellenbosch University)
Key discussion points
Roles & strategies of non-state actors



Mobilisation around land rights is patchy and uneven.
o There are different priorities as well in different places and situations.
o There is a lack of leadership and unity in the ‘land sector’ nationally.
There has been no regular place of convergence, for strategising and learning.
o There are some productive informal links and networks.
o There is some learning from international experiences (Mozambique and MST).6
o But legal strategies have been largely in isolation (or legal ‘services’ rather than
‘strategies’).
Shift towards addressing livelihoods more holistically rather than tenure in isolation – in
research, in NGO practice, in mobilisation.
o Alternative visions for redistributive tenure reform.
Impact of these strategies – and how we might better measure impact



Have tended to focus on delivery by the state.
o Need a more multi-pronged strategy?
Some tensions between NGOs and social movements, around relations and roles
o Expectation that the Landless People’s Movement would gather momentum – did
others step back?
Uncertain about measurement.
o Rights are being undermined in practice; some of this is measurable.
o Passing of legislation, and amendments, can be considered evidence of impact.
o Chronic non-enforcement and realisation of rights a symptom of widespread failure
– by state, but also by human rights advocates.
Key lessons learned



Formal rights in law or policy are only one factor contributing to the realisation of land rights
in practice.
But struggles over rights can form part of broader strategies for systemic change, and can
help challenge power relations.
Struggles which foreground rights can:
o help defend poor people from exploitation, abuse and dispossession;
o open political spaces for organisation and mobilisation;
o provide a grounded critique of unequal and unjust social order;
o express a vision of an alternative, more just social order;
o move from defence of land rights to transformational versions of land rights.
Key issues
1. The centrality of political mobilisation by rural people and political leadership on these
issues.
2. Problem of fragmentation of legal frameworks being mirrored in fragmentation of political
mobilisation (such as it is).
6
Movimento dos Trabalhadores Rurais Sem Terra (Landless Rural Workers’ Movement, Brazil).
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
3. Need for investment in institutional frameworks for rights holders – private property rights
supported by enormous political investment; no comparable investment in other types of
rights (community advocacy, community forums, community property associations).
4. Awareness of rights is a precondition but is a totally insufficient condition for mobilisation or
ensuring these are put into practice (for officials too).
5. There is an urgent need for support for impact litigation on tenure issues, to be linked up
with wider strategies of mobilisation, research and advocacy.
Key strategies for the future
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National-level linkages between initiatives – but who takes the lead?
o Rural people taking the lead.
o Lawyers and academics ‘on tap, not on top’.
Political mobilisation (where it exists) must inform opportunities for targeted advocacy and
litigation.
There was disagreement in the group about acting outside of the law – and whether illegal
direct action undermines or can complement a legal strategy.
o There is a history of civil disobedience for social change.
o The point is how to do this strategically.
There is a need to address a cohesive vision for land rights as the basis for livelihoods in
communal areas, farms and redistributed land.
o and pursuing a key demand for investment in institutional frameworks for
supporting land rights (resourcing and oversight).
Litigation priorities
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‘Living customary law’ (can be consistent with the Constitution): Challenge the eviction of
widows from their homes by their in-laws.
Facilitating long-term tenure security: Section 4 of the Constitution asserts a positive
obligation to provide ‘tenure which is legally secure or... comparable redress’ (use as
defence in eviction case?)
Enforcement of ESTA: The failure of the state to take reasonable steps to enforce the
provisions of ESTA and to take action where violations have occurred.
Challenging the ‘private’: farm dwellers are isolated from the ‘public’ and from entitlements
to services, because they live on privately-owned land.
Equitable access (redistribution): The right of equitable access to land contained in Section
25(5) of the Constitution has not been tested through litigation.
Political participation group
Panelists: Tshepo Madlingozi (University of Pretoria); Richard Calland (University of Cape Town);
Alison Tilley (Open Democracy Advice Centre).
Key discussion points

Too often elites (e.g. NGO professionals and academics are presented as legitimate
participants in political processes, but they tend to dominate the discourse. Current civil
society configurations should be challenged because they are hierarchical, divisive and
exclusive. Many civil society groups and donors are complicit with reinforcing a model of
participation that privileges liberal democratic ideas and technocratic interventions rather
than a model that supports participatory democracy driven through social mobilisation. But
to what extent have social movements captured the realm previously occupied by civil
society and addressed concerns about elite-driven participatory processes?
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Court-based strategies for social movements are largely dependent on the support of public
interest NGOs.
One school of critical legal scholarship on legal engagement suggests that once people use
legal strategies they become co-opted. Another school says the law is not necessarily
disempowering; that it can aid mobilisation.
There is positive jurisprudence which recognises the importance of the courts having a
commitment to encouraging the state to have a meaningful dialogue with disempowered
people. But the Constitutional Court has, in a few key cases, showed a disquieting deference
to politicians, thereby diminishing the public’s right to political participation.
The Mbeki government failed to protect the state from inappropriate interference by private
interests.
Better use should be made of mechanisms, institutions and processes which already exist.
There should be a greater focus on ensuring sound appointments to key state institutions.
Civil society is not adequately informed about the choices and challenges around key issues,
including poverty alleviation, energy, food and water security. It should pay more attention
to the rules of the game and how decisions are made so that it can improve equitable access
to decision-making processes.
Research should be done into the development of, and advocacy for, a national convention
on a protocol around public participation.
Government is very unresponsive to requests for information made under the Promotion of
Access to Information Act (PAIA) (over 64% of requests go unanswered). In some cases the
threat of litigation has resulted in the release of information. In other cases, the matter
drags on. The situation may improve with the appointment of an information regulator. This
could create a significant improvement in political participation.
For a short time, government held open meetings. If these could be resuscitated, they might
provide a foothold for civil society engagement in the interest of improving government
responsiveness and service delivery.
It seems that many service delivery protests arise from a lack of information – people need
to know what is going on and why.
There should be more effective public participation, less ‘speaking on behalf of’, and greater
voice for all, particularly marginalised groups, including children.
Xenophobic violence in 2008 tended to happen in areas where there were no legitimate
representative structures. This highlights the importance of promoting local accountable
structures.
DAY TWO
Session 5 & 6: Working groups II and plenary report-backs
Women’s rights group
Panelists: Anneke Meerkotter (Tshwaranang Legal Advocacy Centre – TLAC); Jennifer Dey (Rape
Crisis); Jennifer Williams (Women’s Legal Centre).
Key discussion points
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Conference participants are engaged in litigation, research, services and support.
There is a lack of a radical approach to women’s rights (one view), but radical discourse may
silence people (another view).
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
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Conference participants speak on behalf of their own organisations. Much discussion takes
place at grassroots level about women’s rights, even though it is not published in feminist
journals, and many CBOs and local faith-based organisations intervene in situations of GBV.
The ‘breaking the silence’ discourse on gender-based violence (GBV) may alienate many
women. Survivors of such violence may want to remain silent about what has happened to
them. Simply coming forward to report a rape is a radical step for many survivors.
Children are particularly at risk in situations of domestic violence, and a child exposed to
violence is at greater risk of becoming a perpetrator in later life. Even though being
subjected to corporal punishment is a significant factor contributing to the likelihood of
becoming a perpetrator, the Commission Gender Equality supported corporal punishment in
a submission to Parliament.
There is a need for improved networking. Had the women’s network known about the
submission on corporal punishment, it would have responded.
There should be research to determine the impact of SER strategies on gender rights.
Mainstream SER strategies should be directly linked to the advancement of gender rights.
There is potential to, e.g. link the right to health to maternal mortality and sexually
transmitted infections.
There is a need for work with men on transforming dysfunctional masculinities and
challenging cultural stereotypes about women.
There is a constant tension in this work between getting angry and risking alienating the
state officials who are responsible for implementation.
Litigation has achieved major gains, including changes to the means test, extension of grants
to people without documentation, enabling refugees to get social grants, and the
equalisation of age of men and women to be eligible for pensions.
Migrants’ rights group
Panelists: Tara Polzer (Forced Migration Studies, University of the Witwatersrand); Christina Nomdo
(RAPCAN); Siyambongu Heleba (Community Law Centre)
Key discussion points
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Silence and trying to become invisible is one migrant response strategy to being in a foreign
country, but people live in perpetual fear of being flushed out as foreigners.
Some individual migrants may wield some power by aligning themselves with powerful
persons.
Because migrants are vulnerable, they are expected to pay bribes to get things done.
Migrants must engage in self-help with respect to protection and other services.
Many migrants tend to stick with others who share a common nationality or ethnicity.
The South African government is subject to normative international human rights standards
and domestic law with respect to migrants and refugees.
Litigation and legal arguments have been used to try to secure the rights of refugees and
migrants, but these have proved ineffective, either because authorities defy court rulings, or
lack the capacity to implement them.
Although South Africa is the largest destination for refugees and migrants in the region, it is
not the only receiving country. There are also refugees in Botswana (which has integrated
Zimbabwean refugees). Zimbabweans going to Mozambique are not seen as foreigners. That
country has denied there is a crisis in Zimbabwe, and made health care available to refugees.
Zimbabweans get access to health care in Zambia and the Democratic Republic of the Congo.
South Africa has shifted its policy towards Zimbabweans, who are now allowed to come here
without a visa for three months. Although an agreement has been reached to allow
Zimbabweans to work in South Africa, this has not yet been implemented. These policy
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changes, which were the subject of civil society advocacy, have not been explained to South
Africans. Zimbabweans are now having to identify themselves.
Xenophobic violence and cholera from across the border created a window of opportunity to
get the attention of the state and other actors.
Key lessons
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Enjoyment of rights is context-specific. They are enjoyed and secured not only in a legislative
and administrative context, but a social, cultural, economic one too.
There is a need to explore push factors for migration. The actions of the authorities in
countries where migrants come from must be in concert with the efforts of those within
receiving countries. South Africa is a destination because of its stability. Foreign policy
should be aggressive in demanding adherence to human rights in the Southern African
Development Community (SADC) region. South Africa must focus on stabilising push factors.
Key strategies for the future
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Do research to map the capacities of stakeholders on refugee and migrant groups, building
on the existing map of key actors.
Secure the co-operation of local and regional actors. In Botswana there is a thrust to work
with the push factors. Exert pressure on that government’s attitude towards the democratic
deficit in Zimbabwe.
Separate issues around key areas of security: housing, land tenure and security, women and
children, and access to health.
Support a move away from the emphasis on citizen’s rights towards human rights more
broadly.
Encourage the South African Human Rights Commission (SAHRC) to do more to secure
refugee and migrant rights.
Urban housing and security of tenure group
Panelists: Malcolm Langford (NCHR); Steve Kahanowitz (LRC); Thulani Ndlazi (Church Land Project);
Lindela Figlan (Abahlali baseMjondolo)
Key discussion points
How things are
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Development is a tsunami. It sweeps away the poor as it prepares for a better world.
Developmentalism has created a culture of evictions. With increased development, there
has been an increase in land values, and an increase in evictions.
There is a process of excluding people “emaphandleni” – those who are outside. In previous
decades the term referred to people from the rural countryside.
Courts are being forced to manage the housing crisis. But many court orders and judgments
are not being implemented.
There is serious tenure insecurity. In Nairobi, 65% of people are living in informal housing. In
Durban the figure is 52%. A major feature of our urban housing is informality and insecurity
of tenure.
Strategies
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Political action happens at various levels: Political action – protest action, litigation and
negotiation – is necessary. Strong protest action provides the basis for negotiating from a
strong position.
Do not see the state as an enemy. Help the state overcome its limited capacity.
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A shift from ‘consultation’ to ‘engagement’. It should be noted that different disciplines use
these terms differently. In the development field, ‘engagement’ has a more positive
connotation than ‘consultation’. In recent PIE cases, the Constitutional Court has used the
term ‘consultation’ to refer to something which happens before the decision to evict is
taken, and ‘engagement’ as something which should happen once a decision to evict has
already been taken.
Regional connections
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In Mozambique the land belongs to the state. This creates some sense of security of tenure,
but with the booming city and the market economy, the state is making deals with private
investors, making people vulnerable.
In Zimbabwe there are limited laws on security of tenure and housing, and those that exist
are simply ignored. A culture of eviction is part of the history of Zimbabwe, and evictions are
continuing.
The way ahead
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Tenure security in a market-led economy is problematic.
There should be an alternative vision – where is the positive alternative for tenure security,
not just defending?
The model of exclusion says that certain people do not count. People who currently do not
count must count, and they must lead the discussions.
Session 7: Case study review and plenary report backs
Joe Slovo case study group
Key discussion points
Kennedy Road
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In the Kennedy Road informal settlement in Durban, there are three recognised groups: 1)
people who arrived before 2004, have a card, and are on the upgrading list; 2) people who
arrived after 2004; 3) those who have already benefited from government assistance, e.g.
people who have received RDP houses and sold them, or rent them out. The leadership is
elected every year. The municipality used to talk only about relocation. Now they are talking
about upgrading. The municipality has asked the committee to ensure that number of
people on the site does not increase beyond its current level. The committee will only do
this once there is certainty that the upgrade will in fact take place.
Breaking New Ground housing policy
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The N2 Gateway project was billed as a pilot for the Breaking New Ground (BNG) policy.
What would have made a tremendous difference would have been to put in place a social
compact with the community as a whole, subject to reasonable conditions. This was a
missed opportunity.
BNG was a forward-looking policy intended to encourage mixed neighbourhoods comprising
in situ upgrading, commercial property, BNG housing and ‘gap’ housing.7 The N2 Gateway
plan itself shifted several times and after one devastating fire, the local authorities stopped
residents from returning and opportunistically put up rental three-storey flats which were
never part of any earlier consultations/plans. The engineers repeatedly received new
7
Housing which caters for people who fall in the ‘gap’ – people who earn too much to qualify for low-cost housing and too little to buy
property on the commercial market.
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instructions, incurring massive unauthorised expenditure. The nearest land which could have
been used for temporary accommodation was in Epping, but the mayor, MEC [member of
the Provincial Executive Council] for housing and national housing minister backed down
when industrial landowners threatened legal action. They chose Delft, 30km out of Cape
Town, as the site to which people would be relocated.
The vision of middle class housing next to the highway as part of the eradication of slums
was unaffordable for the residents of Joe Slovo from the outset. The process could have
gone the route of in situ upgrading. The bigger aspirations of government got in the way of
what was possible.
Political will is one half of the problem, the other is capacity. BNG showed that the state has
accepted the idea of incremental housing, even if it failed in this locality.
Joe Slovo was reasonably small settlement and when the authorities provided some
services, they could have provided tenure security for those people. Now that the numbers
are large, the problem is much larger. Accommodating the needs of so many people in such
a small space may not have been possible anyway.
Joe Slovo shows that the idea of housing as a commodity rather than a process associated
with a settlement and a livelihoods is still current in government thinking. Evidence was
placed before the Constitutional Court in respect of housing as more than a building, but the
court did not take that into account. The Kennedy Road example shows it is possible to have
a more participatory process which is less top down and more responsive to the needs of
people.
Houses are still seen as boxes. Shack dwellers are the fastest and most efficient builders of
housing.
Politicking
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Development processes become captive to real competition in political actors – in this case
between spheres of government. Local government elections are coming up, so the problem
is likely to become worse before it becomes better.
The bigger picture
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Budgetary constraints are the key issue, and government can always argue that it is doing
what it can, even if a progressive court judgment is secured.
Locating people on the periphery of cities on the basis of low land cost ignores the
importance of transport, infrastructure and services and the cost of providing those in
peripheral locations like Delft.
Arguing a lack of money and capacity is an excuse for not delivering, the government has
shown it can meet deadlines associated with the World Cup.
Building on local agency
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Support and strengthen the political resilience of people and force the government to pay
attention to the needs of the people who do not count.
Capacity to monitor and respond must be located in beneficiary communities themselves.
The key issue is to identify key points of intervention to promote the development of that
capacity.
Despite division and fragmentation and more than one committee, people can construct a
community of interest acting in common. While communities are not homogenous, it is not
impossible for local people to construct a political institution, a local institution that can
guide local processes and implementation, determine who benefits, etc.
Local people on the ground can build implementation capacity. There is a key role for local
institutions to secure tenure. The fire hazard – physical planning – will not find a
technocratic solution without directly involving the people who live there providing part of
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
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the answer. Disaster mitigation efforts in Joe Slovo are a case of how not to do
development. The authorities could have built on existing sophisticated local social
institutions like construction technologies which enabled shacks to be flattened quickly in
the face of an oncoming fire, and a system to accompany drunk people home and put them
to bed to mitigate the risk of making fire and then falling asleep. Instead, the city council
introduced a buckets and whistle brigade. Criminals saw the opportunity to blow the
whistles and stealing the possessions of people who fled.
Be careful of romanticising agency and constantly be alert to relations of power. What can
quickly happen is that a representative of a social movement can be held hostage to bribes
and favour. This requires great vigilance.
Civil society engagement
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There should have been more proactive monitoring of this process from the start, given the
BNG’s stated policy intentions.
Court actions
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There were a number of important creative court judgments in the first decade of
democracy. There has been a gradual but noticeable shift towards a more executive-minded
approach in the second.
Integrating migrants and overcoming xenophobia group
Key discussion points
Context
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There is a history of attacks on foreigners culminating in large scale attacks in May 2008.
Response strategies must be correctly anchored in the three distinct fault lines: social and
cultural; economic; and ethnographic. These fault lines seem to be anchored in South
Africa’s legacy of discrimination with respect to legislation, policy and administration.
There are a number of dominant perceptions that increase the risk of further outbreaks of
violence:
o Service delivery gaps and pressure on services.
o Contestation over scarce resources (houses, jobs, etc.).
o Contestation over perceived differences in entrepreneurial skills between localowned businesses and foreign-owned businesses.
o Foreigners may be skilled, and they may be willing to do menial work for less money.
Comments on responses
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Humanitarian networks were set up to respond to the needs of survivors of xenophobic
attacks – shelter, food, health and communication with people who speak non-local
languages. There is a need to maintain a state of preparedness.
Many NGOs were slow to move from their traditional areas of activity to an effective
response to xenophobic attacks.
In some cases refugees and migrants did not co-operate or come forward because they felt
that doing so could expose them to violence.
There were opportunistic attacks by some people who took advantage of the wave of
violence to commit crimes and or settle old scores.
Many NGOs were not conscious of the xenophobic threat; they may be conscious and/ or
unconscious instigators of violence.
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The failure of institutions to respond adequately to isolated violations and abuses affecting
foreigners (e.g. police ignoring reports of crimes reported by foreigners) created a climate of
impunity which fuels violations and abuses.
A sense of collective guilt resulted in a sense of collective punishment (affecting locals and
foreigners).
What more can be done to mainstream measures to protect non-citizens in South Africa?
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Organise groups of foreigners to work with South African groups to emphasise a pan-African
agenda and create a sense of belonging and unity.
Take steps to tackle the psychological and ideological drivers of xenophobic feelings, e.g.
perceptions that South Africans are different to other Africans and may be overwhelmed by
invasion by foreigners.
Investigate the possibility of holding a national conference or series of national conferences
on the threat of xenophobia to determine what to go, given that there is a real likelihood of
recurrence. Ideally this process should to be driven or co-ordinated by the SAHRC so that
conference outputs feed directly into government policy with the obvious advantage of
changing policy and potentially unlocking resources to deal with the real threat of
xenophobia on an ongoing systematic an ongoing basis.
Involve all key stakeholders in the xenophobic conversation – perpetrators and victims –
since it seems some perpetrators are oblivious to the consequences of what they have done.
Heed early warning signs. The events of May 2008 show that attacks start as isolated and
unco-ordinated and can easily get out of hand.
Encourage foreign groups to work in organised formations with identifiable leadership to
address matters of concern and create avenues for formal communication with local
authorities and local groups.
Anchor response strategies in human rights language and discourse.
Undertake civic education in grassroots communities and in schools to celebrate ethnic
diversity, the African continent, its context and history.
Create some sense of supranational citizenry in SADC based on e.g. ubuntu.
Investigate the opportunities for regional programmes to inform migrants of their rights and
address widespread prejudice in South Africa.
Promote collaboration between groups, specialised organisations and social movements like
labour, churches etc.
Actively participate in and influence the direction of SADC integration.
DAY THREE
Session 8: SER in the SADC and African region – forging linkages
The Central Kalahari Game Reserve case, Botswana
Alice Mogoe, Ditshwanelo – the Botswana Centre for Human Rights
Ultimately this case is about a development paradigm which is not working for Botswana citizens.
They are in a position of being recipients of benefits which flow from a development model crafted
by others for them, without their mandate. The case involves the right to water; the right to land;
the right to food; the right to health – effectively, the right to development.
In 1961 the Central Kalahari Game Reserve (CKGR) was established in the then Botswana
Protectorate. It was created for both wildlife and for the Basarwa/San who lived in the area. The aim
was to protect them from the encroachment of other peoples. In 1997, the first relocation was
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
conducted. People were moved from within the CKGR to settlements outside it. In 2002, the second
relocation occurred. Having been involved in the second relocation, it was clear that it was an
effective forced relocation. Basic and essential services were stopped. These included the provision
of water, food rations, destitute allowances, and mobile health services. Residents were
‘encouraged’ to relocate but not forced. The choice they were given was to remain inside the CKGR
without any services or relocate to the settlements outside the CKGR where the basic and essential
services would be provided.
At the time of the cessation of services, a civil society grouping, the Negotiating Team, which
included both residents of the CKGR and supportive Botswana NGOs, was engaged in negotiations
with one of the government departments (Department of Wildlife and National Parks – DWNP)
concerning land use ideas of community use zones and recognition of traditional territories of the
indigenous communities. Due to conflicting, unclear policies within the two government ministries
dealing with the residents of the CKGR (Ministry of Local Government and Ministry which housed
the DWNP), while the negotiations were underway with the DWNP for sustainable use of the flora
and fauna inside the reserve by the residents, the Ministry of Local Government announced that it
would stop basic and essential services inside the CKGR. Services were stopped on 31 January 2002.
A government-owned borehole was sealed and its engine removed by the government, in one of the
settlements inside the reserve. In February 2002, the Negotiating Team decided to take the matter
to court as an urgent matter with the aim of reversing the decision. The main objective was to force
the hand of the government and return to the negotiating process. The case dealt with:
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Whether the termination of basic and essential services (health, food, water, etc) was
unlawful and unconstitutional and whether the government was obliged to restore the
services. The Court ruled that the termination of services was neither unlawful nor
unconstitutional. It also decided that the government was not obliged to restore basic and
essential services. They agreed with the state that services had not been stopped, but had
merely been relocated and remained accessible to the residents.
Whether, before 2002, the residents were in possession of the land which they lawfully
occupied, and whether they were unlawfully or wrongly deprived of the land without their
consent. The Court ruled that the residents had lawfully occupied the land and were
unlawfully deprived of it without their consent.
Whether refusal by the government to issue special game licences (SGL) for hunting within
the reserve was unlawful and unconstitutional. The Court ruled that the refusal by the
government to issue SGL to the residents was unlawful and unconstitutional. The Court
ruled that it was unlawful and unconstitutional to deny residents entry into the CKGR. The
government has since not issued any SGL because the national legislation prohibits hunting
inside the reserve. Prior to 2002, the residents had been permitted to hunt inside the
reserve, in spite of the existence of such law.
In effect, this was a hollow victory because while those who had been part of the case could return
to the reserve, they could only do so without the basic and essential services upon which they had
grown to depend. The aim of the court action of bringing the government back to the negotiating
table had not been fully achieved. We have returned to working directly on the lobbying/negotiating
strategy.
The courts
As has been noted by researchers, court enforcement of constitutionally-protected SER can often
lead to the Court being constrained by the separation of powers doctrine. In the case of the CKGR,
even though there was room for the Court to engage with the matters through adjudication, it was
unable to order that the state act in accordance with specifically identified and stated duties which
exist in legislation. One of the judges did, however, attempt to couch what he argued were duties in
terms of government policies towards the poor, as rights which the state ought to protect. He also
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
drew upon the constitutionally protected ‘right to life’ as the basis of the state’s duty. Without
water, there can be no life.
Lobbying for recognition of socio-economic rights
Ditshwanelo communicated with the Minister responsible for DWNP to ask whether the government
did not respect the basic right to water which everyone in Botswana has and which ought to
protected. This was in response to the refusal of DWNP officials to allow Basarwa/San who had
decided not to relocate, to transport their own water into the reserve for their own needs. The
Minister did not engage us on the question, but proceeded to allow the family to bring in their own
water. This was recognition of the right to water, albeit for a specific community.
Negotiating for recognition of socio-economic rights
The Botswana NGOs, working with the residents (former and current) have formed the Residents’
Committee and are in the process of preparing themselves to engage in a meaningful negotiation
process with the government. Issues of concern to the residents include:
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access to water;
right to hunting and gathering (the apparent continued suspension of the issuance of
hunting licences had led to several poaching cases being brought before the courts);
employment and income opportunities using the environment;
respect of their ancestral and burial sites within the reserve.
Working towards a development-paradigm shift
It has been clear over the years that legal victories relating to SER which are not constitutionally or
statutorily defined rely greatly upon political will for their realisation.
The difficulties we faced in this case included the vulnerability of people to outside influences, e.g.
financial incentives, and the approach of the international organisation Survival International which
is primarily about advocacy, naming and shaming, not development. Survival said it had a blueprint
for how to engage, based on experience in Australia and America. Our intention was to bring
government back to the negotiating table. Survival was engaging on an idealised notion of the
Basarwa as hunter gatherers. Basarwa children go to school and get water and food rations. They
have one foot in the modern world, and another in the life of the previous generation. The court
victory was hollow – it found that, while people had been unlawfully and unconstitutionally
dispossessed, and the suspension of their hunting licences unlawful, government action to
discontinue services was not unlawful because the authorities had simply relocated the resources to
two settlements outside the reserve.
The effect of our political history has a huge impact on the present. Independence was handed to us
on a plate, so it is difficult to mobilise in Botswana. Working in the field of human rights is
frustrating, even in civil society. There is not enough reflection on why people are doing what they
are doing and where they are going. Elections are coming up in October, and the debate is about
personalities and power, more than about political differences between the parties.
Land reform in Mozambique
Lourenco Duvane, ORAM, Mozambique
ORAM8 is a national NGO working on land tenure to benefit the rural peasantry. Civil society, NGOs,
church leaders and the media was united behind the new Land Law when it was passed in 1997. The
law aims to provide secure land for everyone, promote investment and promote agriculture.
8
Organizaçao Rural de Ajuda Mutua [Rural Organisation for Mutual Help].
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Mozambique is an agricultural country. Securing land is a human rights issue. Everyone deserves a
piece of land to sustain his or her family. Providing land is not enough, also need equipment, tools
and knowledge so that people can make use of that land. If the land is not used, the government can
take it away.
The law provides for gender quality – men and women have equal rights in the land. Before this law,
the cultural practice was that a widow was not allowed to own land in her name; the land had to be
registered in the name of her husband or brother. Officials no longer ask a woman who wants to
register land ‘where is your husband?’
The law also provides that land is managed by the communities that live on it. Before land can be
granted to outsiders (e.g. private investors), there must be a consultation with the community. And
anyone who has been working land for ten years has the right to continue to use it without any
certificate being required.
Civil society enjoyed the victory of a progressive land law, but lost sight of how things were being
implemented. Now we find that investors are bringing conflict. People are being chased away from
their land; there are conflicts on the beaches; there is no consultation with communities as the law
requires; government officials are not fulfilling their duties; and some officials are corrupt.
Community consultations are supposed to take place over a minimum of 15–20 days but we are
finding a single meeting is held without notice and described as ‘consultation’. The land affairs
department, local government and the community leader are supposed to give a community 15–20
days’ notice that a consultation will be held in order to enable people to have discussions, seek
advice, etc. Then the government, community and investor are supposed to attend a meeting at
which the community decides whether the proposal will be accepted. We are finding that some
community leaders are accepting gifts to sign agreements without consultation. The community in
question does not know what benefits the private investor is supposed to bring.
We are engaging in civic education to bring awareness of this issue. People are writing letters to the
press saying they did not know about a community consultation in their areas and calling for the
process to be done again. We could bring this matter to the courts, but have not taken any legal
action yet.
All the land in Mozambique is held by the state, but some (including the International Monetary
Fund and the World Bank) are saying land should be privatised and nobody in civil society is saying
no.
What should we do? We need to resurrect NGOs because things are not going that well. About
10,000 Chinese farmers are about to be settled in Mozambique, but nobody knows where.
Government is saying it is not true, but there is information that government has signed a contract
with the Chinese government, just as Madagascar, Ghana and Cameroon have done.
We have started a movement at the district level to organise and facilitate the engagement of
peasants with district government. It is no longer enough to discuss issues at national level. The
people at the grassroots that we in NGOs and academia are working for must participate in what we
are doing.
Comment

The emerging land lesson in Africa is that, even where progressive laws exist, there is
insufficient attention to implementation and the enforcement of rights. We have fallen
victim to this in South Africa. There is a naivety about the extent to which law and policy can
bring about change. There is a need for pressure, motoring and assistance to government.
Litigation plays a role in defining rights, but the key issue is a lack of institutional capacity.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
The situation in Uganda
Christopher Mbazira, Community Law Centre, Uganda
We may engage for human rights, but unless we engage economic planning mechanisms no
implementation can take place. Uganda is one of the poorest countries in the world, with a very low
life expectancy and income level. There have been a number of civil conflicts and military regimes.
Since 1987 there has relative calm, with the exception of the northern region where there has been
a civil war prosecuted by the Lord’s Resistance Army for the past 20 years.
In the late 1980s and early 1990s, Uganda was one of the countries that embraced the World Bank’s
structural adjustment programme. It privatised national enterprises; retrenched large numbers of
public servants (in a country where the public service is the biggest employer); abolished foreign
exchange restrictions; and opened up the economy to foreign investment. As a result, Uganda was
put on a pedestal as being a model of African development with a new breed of African leader.
By the late 1990s, structural adjustment had failed. People had to pay for medical treatment in
public hospitals, they had to pay school fees, poverty had increased, and public service
retrenchments meant widespread unemployment. Even though Uganda is judged to be an example
of best practice with regard to dealing with the HIV/Aids pandemic, much needs to be done.
Between the mid-1980s and early 1990s, just about every family had lost a family member to the
disease. The Human Development Index puts our country at no. 154 of a total of 177 countries.
Although a poverty eradication plan has been in place in the Ministry of Economic Planning since
1997, there have been no tangible results. This plan is due to be replaced with a five-year national
development plan.
Before 1970 land had been privately held, and there were many squatters. In1998 a new land law
created some security of tenure to people occupying land. Bona fide occupants with more than 12
years’ occupancy as of 1998 could not be evicted by land title holder without compensation. People
living on land with the consent of land owner could also not be evicted without compensation. But
there have been evictions without the necessary court orders, some of these violent, some carried
out at night. Government proposed amendments to the Land Act to enable bona fide occupiers to be
evicted, but the Bill was withdrawn from Parliament after heavy opposition. The Land Act puts in
place an elaborate system of customary certificates of title, but no mechanisms have not been put in
place and no certificates have been issued.
South Africa has justiciable SER; Uganda has human rights as objectives and directive principles for
state action. Uganda has ratified almost all international and African human rights instruments. But
government has failed to take the national Human Rights Commission guide for state planning into
account in its plans. Economic planning tends to focus on the economy rather than on social
development. Insufficient attention has been paid to human rights and community development.
Government does not want to build mechanisms that will ensure accountability. Our experience
shows that, as long as we do not follow a human rights approach, there is a problem. Uganda is still
one of the least developed countries in the world.
Support to human rights commissions in Africa
Menzi Hlongwa, Centre for the Study of Aids, University of Port Elizabeth
The failure of authorities in African countries to make specific provision for those in desperate need
means there is no reasonable likelihood of ensuring responses to ensure progressive realisation of
SER. There is a need for research across countries, and an exchange of experiences. The challenges
for regional public goods will inform how we do things next time. People move from one country to
another, surpassing the ability, capacity and resources of many governments to provide. There is a
need for strategic support for human rights in Africa. The Centre for the Study of Aids has responded
to requests for support from the human rights commissions of Zambia and Rwanda. Our research
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
indicated that Zambians did not think their commission was doing much for them, and we provided
feedback to assist commissioners to improve what they were doing. We have staff placements in the
Zambian and Rwandans commissions to assist them to improve their services.
The International Center for Transitional Justice’s activities in the region
Piers Pigou, International Center for Transitional Justice Southern African Regional Assessment Project
Transitional justice generally looks at a range of potential interventions that might be employed in
contexts of countries transitioning from authoritarian and repressive conditions to more democratic
dispensations. In these contexts, there is an implicit recognition that normative frameworks for
justice and accountability have limited application and therefore a range of options might be
explored. These include: truth recovery; prosecution and accountability; institutional
transformation; reparations; and memorialisation.
The socio-economic focus of these processes is very limited (e.g. the South African Truth and
Reconciliation Commission and the Kenyan Truth Commission) and there is a tendency to not engage
with these issues. However, it has become increasingly clear that socio-economic concerns and their
primacy in the lives and aspirations of most communities affected by repression, organised violence
and torture are primary concerns in Southern Africa.
The Southern African Regional Assessment project aims to review what has been done, conditions
on the ground, and opportunities and attitudes towards these processes. South Africa, Zimbabwe,
Angola, Mozambique and Namibia have all experienced massive violations of human rights in the
recent past. Apart from Zimbabwe, where a political crisis continues, all of these states have further
seen the end of major conflicts within the last two decades. The need to come to terms with past
violations, however, remains. Only in South Africa have formal transitional justice mechanisms
played a visible role, and even there, those mechanisms have left many issues unaddressed.
In all five cases, there are some commonalities: the devastation of conflict on livelihood; widespread
impunity for violations; weak criminal justice processes; an inherent lack of transparency as a key
aspect of the political culture; transition as a betrayal of ideals; extreme socio-economic inequality
and high rates of gender based violence.
In South Africa, for example, the extreme economic inequality between rich and poor reflects the
failure to address the economic crimes of apartheid and the absence of adequate reparations. In
Angola, meanwhile, transitional justice mechanisms such as truth-seeking are often relegated to the
second tier of priorities, and ‘reconciliation as reconstruction’ has become a national mantra.
Throughout the reports on these countries, there is overwhelming concern to link justice and
development.
Other common threads run through the diverse cases. For example, several reports note the
existence of and possible advantages of informal and traditional transitional justice mechanisms;
evaluate the necessity and feasibility of anti-corruption measures; identify possible reforms of
veterans’ pension schemes; identify gender-based crimes, inequalities and poor access to justice;
consider community reparations schemes; propose healing programmes and transitional justice
education; suggest research on victims’ views; and call for the co-ordination of civil society
initiatives.
Yet the differences between the cases are as compelling as their similarities. The political crisis in
Zimbabwe makes any preparation for transitional justice mechanisms uncertain, while the end of
devastating conflicts in Angola and Mozambique means that discussions of transitional justice take
place in the context of extreme war-weariness, and political disapproval. In Namibia the continued
dominance of SWAPO [South West African People’s Organisation], the liberation movement and
current ruling party, has prevented official investigation of the past.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
A principal recommendation of every assessment is therefore a need for more research and
deliberation on a number of issues including what is meant by transitional justice in various settings;
when does a country decide to start telling the truth; how does a country revisit its past; how do we
know what transitional justice mechanisms work and when; at what point do victims demand justice
and what are the indicators of a successful transitional justice process?
In addition, partners observed the need to look beyond human rights violations and the
victim/survivor paradigm and to explore how contemporary issues, in particular corruption and
poverty, as well as socio-economic inequalities are linked to conflicts of the past.
The South African government and international human rights instruments
Pitso Montwedi, Chief Director: Human Rights and Humanitarian Affairs, Department of International
Relations and Cooperation (DIRCO)
The government is committed to respect for, promotion, protection and fulfilment of human rights.
The Department of Justice and Constitutional Development is accountable for respect for human
rights and fundamental freedoms within South Africa, including the Constitution and the Promotion
of Equality and Prevention of Unfair Discrimination Act, the Promotion of Access to Information Act,
and the Promotion of Administrative Justice Act. The Constitutional Court has given momentum to
the notion of the justiciability of economic, social and cultural rights. Non-discrimination is a key
principle of human rights law. Our foreign policy is predicated on the externalisation of domestic
policy, in our region, continent and the rest of the world.
In 1995 the government signed the core instruments of international human rights covenants.
However, we have not ratified International Covenant for Economic, Social and Cultural Rights
(ICESCR). Cabinet decided the Department of Labour would be the implementing agent for ICESCR.
However, because this Department does not have to power to police an instrument which cuts
across all government departments, government could not become a state party to ICESCR. Our
Department is hoping the nascent National Planning Commission will take notice of this issue.
There is much higher political will in the countries of the Africa to make a positive change in the lives
of the people. However, the 53 countries on the continent are at very different levels of maturity
with respect to human rights, good governance and accountability. We are working on
intergovernmental structures that address human rights in Africa. Governments do not currently
come together to discuss the promotion and protection of human rights through the African
Commission on Human and People’s Rights.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Closing session
Workshop review
Rick de Satgé
Content overview
At the centre of what we have been talking has been a debate about the distinction between human
rights and citizen rights. We have tended to assume we are talking about citizen rights which, in the
regional context, can be exclusionary. Human rights must include the rights of migrants and
refugees. We have spent time learning from practice about advancing SER. But it is not possible to
advance SER without deepening democracy and reducing poverty and inequality. This requires
responsible and accountable governance and a vibrant civil society.
Vibrant civil society embraces:
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What ‘community’ is – is it defined by locality or is it a community of interest?
The challenges of participation – particularly at scale.
A range of organisational scales and forms – local and national, and social movements.
NGOs and academic institutions with the capability to lobby, advocate, shape policy and
litigate.
How to strategically align the activities and functions of the actors in the country and the
region.
Shared learning and communicating.
Responsive and accountable governance embraces:
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The legal framework
Rights and socio-economic policy.
The implementation capacity of key institutional actors in the state – local provincial and
national.
The strength and credibility of regional institutions.
There is a continuum of engagement between civil society and government which includes dialogue,
negotiation, civil disobedience and violent protest. We should ensure that engagement is positive
through a deepening of democracy that allows the spheres to connect with one another. There is
currently a culture of impunity with respect to violence, and it narrows democratic space. If the state
responds to violence, it means violent behaviour is rewarded.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
The final point is how to measure the impact of various SER interventions. Quantitative
measurements are crude and not particularly useful, but there is resistance to qualitative
measurement as credible evidence.
Participant feedback
Key lessons
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We need to improve co-ordination and co-operation in civil society in South Africa and the
region at large.
Do not research the research!
There are benefits of stakeholders engaging together on SER, including the private sector
and the private sphere.
All interventions should be informed by children’s rights.
Constant monitoring and evaluation is necessary.
We should focus on tenure security.
There is a great need for citizen awareness of how to claim SER.
Co-ordination of civil society is very important – this will make it more pragmatic and
vibrant. We should speak with one voice.
Legal interventions have their place, but they also have limitations. We should start with
negotiation and see how far that takes us.
The absence of the SAHRC is stunning given its constitutional mandate. We should hand the
results of some of our work to the SAHRC to find a way forward.
There is a need to forge a greater understanding of the practical implications of the links
between rights. People talk about indivisibility of rights but what does this mean in practice?
We need more illustrative approaches.
Non-state actors have human rights obligations in terms of international instruments. It
should be the role of the state to police compliance on the part of non-state actors.
Academics, NGOs and lawyers must be ‘on tap, not on top’.
The struggle for SER is felt by those who suffer; they are the ones who should lead us.
Practical proposals
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A lot of informal networking activity has taken place during this workshop and linkages have
been formed. Keep this momentum going within civil society and within our individual
organisations.
Circulate the attendance register to facilitate the ability of participants to circulate useful
documentation to one another.
Organise a regional annual learning event on security of tenure with the participation of
migrants, practitioners, activists, academics, CBOs and social movements.
Provide support for practitioners to gain fieldwork experience.
Regionalise our analysis, look at the conduct of non-state actors, investigate bilateral
treaties, track trends, and monitor violations.
Support social movements with capacity and resources to enable them to take their place as
key roleplayers in development. Provide opportunities for social movements to connect with
and learn from one another, and connect with people engaged in local struggles.
Provide support for dialoguing and networking opportunities led by those who suffer.
Practice politically active listening – listen to hear what people say and want, do not impose
your will.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Other comments

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We did not talk about the economic context – the market economy is the key context in
which SER are discussed.9
The workshop was invaluable.
There was much informal mapping and co-ordination to inform future research.
The workshop broke down some of the barriers by bringing together lawyers, activists,
academics and social movements around SER.
This was a good opportunity to share experiences.
Many other government departments should have been present.
Closing
Ingrid Skjolaas, Royal Norwegian Embassy
There was a good level of participation in the conference. Thank you to all the organisations who
were not part of the NCHR programme but who came to add their voices; and to the representatives
of the South African government. South Africa is a pioneer internationally in the field of SER, partly
because of its unique legal framework, and partly because of what happens within that framework.
We look forward to continuing and renewing our relations around human rights with those who
participated in this event.
Ben Cousins
This workshop was the culmination of a more than decade-long NCHR programme. Thank you to
NCHR, the Royal Norwegian Embassy and the government of Norway for supporting this programme
in a way that was ‘on tap but not on top’. Congratulations for working as partners rather than as
bosses. It has been hugely important for building PLAAS as an institution and for building a
relationship between Noragric and PLAAS. Thanks to Tor Edland and Malcolm Langford of NCHR, the
organisers and staff at this conference, to the presenters, to the international and southern African
participants, and to representatives of social movements. We hope to meet for more crossprogramme dialogue and learning.
9
A scheduled input on economic policy and budgetary allocations had to be cancelled because presenter Imraan Valodia was ill.
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Appendix: Workshop participants
Mark Abrahams
Rebecca Amollo
Geoff Budlender
Richard Calland
Lilian Chenwi
Hlako Jacob Choma
Aninka Claassens
Ben Cousins
Rick de Satgé
Kathleen Dey
Sipho Dlamini
Lisa Dragga
Annelie du Plessis
Jean du Plessis
Jackie Dugard
Lourenco Duvane
Tor Edland
Lindela Figlan
Elvis Fokala
Cornelius Hagenmeier
Ruth Hall
Betty Hattingh
Stephen Heyns
Menzi Hlongwa
Steve Kahanowitz
Andiswa Kolanisi
Lwazi Kubukeli
Malcolm Langford
Puleng Letuka
Sandy Liebenberg
Janet Love
Tshepo Madlingozi
Molebogeng Matlhare
Veronica Matshobeni
May-Elin Stener
Christopher Mbazira
Anneke Meerkotter
Sindiso Mnisi
Alice Mogwe
Pitso Montwedi
Maureen Motepe
Khulekani Moyo
Helgard Muller
Thulani Ndlazi
Christina Nomdo
Babalwa Petelo
Graham Philpot
Piers Pigou
Tara Polzer
Mzonke Poni
Annette Reed
Steve Robins
Helen Scanlon
Shirhami Shirinda
Shereza Sibanda
Abongile Sipondo
Espen Sjaastad
Ingrid Skjolaas
Henk Smith
Tara Smith
Ursula Smith
Johanna Thulare
Alison Tilley
Kate Tissington
Arnold Tsunga
Frans Viljoen
Tersia Warries
Centre for Open Learning, University of Cape Town
Community Law Centre, University of the Western Cape
Democratic Governance & Rights Unit, University of Cape Town
Community Law Centre, University of the Western Cape
Ismail Mahomed Centre for Human and Peoples’ Rights, University of Venda
Legal Resources Centre (LRC)
Institute for Poverty, Land and Agrarian Studies, University of the Western Cape (PLAAS)
Phuhlisani Solutions
Rape Crisis
Church Land Project
Legal Resources Centre (LRC)
Lawyers For Human Rights (LHR)
Centre on Housing Rights and Evictions (COHRE)
Centre for Applied Legal Studies (CALS), University of the Witwatersrand
Organizaçao Rural de Ajuda Mutua (ORAM), [Rural Organisation for Mutual Help], Mozambique
Norwegian Centre for Human Rights (NCHR), University of Oslo
Church Land Project
Community Law Centre/ Human Rights Institute of South Africa (HURISA
Community Law Centre, University of the Western Cape
PLAAS
Legal Aid Clinic, University of Stellenbosch
Workshop rapporteur
Centre for the Study of AIDS, University of Port Elizabeth
LRC
Church Land Project
LRC
NCHR
Ismail Mahomed Centre for Human and Peoples’ Rights, University of Venda
Faculty of Law, Stellenbosch University
LRC
Centre for Human Rights, University of Port Elizabeth
Department of International Relations and Cooperation
Royal Norwegian Embassy
Community Law Centre, University of the Western Cape
Tshwaranang Legal Advocacy Centre (TLAC)
Rural Women’s Action Research project (RWAR)
Ditshwanelo, the Botswana Centre for Human Rights
Department of International Relations and Cooperation, South Africa
National Department of Social Department, South Africa
NCHR
Department of Water Affairs, South Africa
Church Land Project
Resources Aimed at Preventing Child Abuse and Neglect (RAPCAN)
Rape Crisis
Church Land Project (CLP)
International Center for Transitional Justice (ICTJ)
Forced Migration Studies Programme, University of the Witwatersrand
Church Land Project
LRC
Department of Sociology and Social Anthropology, University of Stellenbosch
International Center for Transitional Justice (ICTJ)
PLAAS
Inner City Resource Centre
Democratic Governance and Rights Unit (DGRU), University of Cape Town
Department of International Environment and Development Studies, Norwegian University of Life
Sciences (Noragric).
Royal Norwegian Embassy, Pretoria
LRC
NCHR
Phuhlisani Solutions
CALS
Open Democracy Advice Centre
CALS
Africa Regional Programme of the International Commission of Jurists
Centre for Human Rights, University of Pretoria
PLAAS
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Key points from the NCHR ‘Securing socio-economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009
Samantha Waterhouse
Wilmien Wicomb
Boyce Williams
Jennifer Williams
Poul Wisborg
Rachel Wynberg
Musa Zakwe
Sbu Zikode
RAPCAN
LRC
Phuhlisani Solutions
Women’s Legal Centre
Noragric
Environmental Evaluation Unit, University of Cape Town
Association for Rural Advancement (AFRA)
Abahlali baseMjondolo
37