South Africa is a multiparty parliamentary democracy in which constitutional power is shared among the executive, judiciary, and parliament branches. In 2016 the country held largely free and fair municipal elections, in which the ruling African National Congress (ANC) received 54 percent of the vote. In 2014 the country held a largely free and fair national election in which the ruling ANC won 62 percent of the vote and 249 of 400 seats in the National Assembly, which re-elected Jacob Zuma to a second term as the country’s president.
Civilian authorities maintained effective control over the security forces.
The most significant human rights issues included: police use of unlawful lethal force; harsh and life-threatening prison and detention center conditions; official corruption; and victimization by police of migrants and lesbian, gay, bisexual, transgender, and intersex persons, including violence.
Although the government investigated and prosecuted officials who committed abuses, there were numerous reports of impunity.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were reports that the government or its agents committed arbitrary or unlawful killings.
Police use of lethal and excessive force, including torture, resulted in numerous deaths and injuries, according to the Independent Police Investigative Directorate (IPID), Amnesty International, and other nongovernmental organizations (NGOs). The country had a high crime rate and criminals were often well armed. The government recorded more than 20,000 killings (or homicides) in the 12-month period ending March 31, 2016. The National Prosecuting Authority (NPA) did not publish statistics on the number of murderers prosecuted, but watchdog groups estimated the conviction rate for all crimes reported was as low as 10 percent.
According to the 2016-2017 IPID annual report, 394 persons died in police custody or due to police action during the 12-month period ending March 31. IPID recommended prosecution in 115 of the 394 cases.
During the year IPID received 7,014 complaints ranging from killings to assault, recommended prosecution in 1,140 cases, and arrested 124 police officers. Of the cases recommended for prosecution, the NPA prosecuted nine, dropped 26, and left 1,105 pending at year’s end. IPID referred 1,238 disciplinary cases to the South African Police Service (SAPS); 139 cases referred resulted in disciplinary action.
A death resulting from police action was defined as a death that occurred while a police officer attempted to make an arrest, prevent an escape, or in self-defense. It also covered collisions involving one or more SAPS or municipal police vehicles as well as mass actions where police officers were present. IPID did not track deaths resulting from torture, which it classified as murder. Watchdog groups noted deaths in custody often resulted from physical abuse combined with a lack of medical treatment or neglect (see section 1.c.).
Although government officials categorized few killings as politically motivated, media and NGOs claimed most were a result of intra-ANC disputes at the local level.
Because political killings remained high in Kwazulu Natal province, Premier Willies Mchunu established the Moerane Commission to investigate. The key political parties submitted evidence, and key figures testified. The commission identified ANC infighting and readily available hitmen as major contributing factors to the assassinations. The most notable killing was of former ANC Youth League secretary-general and uMzimkhulu (municipality) Councilor Sindiso Magaqa. He was shot 15 times in July and died in the hospital in September. Police said two suspects in the killing were in a shoot-out with police on September 1. One suspect died from gunshot wounds; the other remained hospitalized.
There were no reports of disappearances by or on behalf of government authorities.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the law prohibits such practices, police officers reportedly tortured, beat, raped, and otherwise abused suspects. Amnesty International corroborated cases of torture, including the use of electric shock and suffocation. Police also assaulted detainees with batons, fists, and booted feet. To force confessions, police sometimes moved a nonviolent suspect under interrogation into the cell of violent criminals. Police allegedly ignored activities in the cell as the violent criminals intimidated, beat, or raped the suspect, after which police continued the interrogation. Police torture and physical abuse allegedly occurred during house searches, arrests, interrogations, and detentions; it sometimes resulted in death (see section 1.a).
From January to June, 61 incidents of torture by police officers were reported. A midterm report to parliament by IPID in June indicated there were 207 deaths from police action between January and June–a 30 percent increase over the first half of 2016. IPID noted in June that Gauteng province had the highest number of police brutality deaths in the year to date. One of the cases involved a six-year-old who allegedly died from pepper-spray used by police during a domestic violence intervention. According to the Gauteng Department of Community Safety, during the year no police officer was suspended or charged in connection with a police brutality death. In Free State province, 42 persons died in the first half of the year from police brutality; 20 persons died there in the first half of 2016.
The same mid-term report highlighted rapes by police officers. In the first half of the year there were 51 cases reported, allegedly committed by both on-duty and off-duty officers. According to the report, Gauteng had the highest number of officers allegedly involved in rapes, with 15 cases registered.
In July police investigated a gang rape after a group of men dressed in police uniforms attacked a woman at gunpoint in Johannesburg. No arrests were made. Investigations were ongoing.
Incidents of police harassment of foreigners continued. Refugee and migration advocacy organizations received reports police confiscated immigration and identity documents of foreign nationals, threatened them with arrest on spurious charges, and forced them to pay bribes to be released. This was most prevalent among individuals whose legal documentation was not renewed in a timely fashion, according to refugee advocacy organizations, including the Office of the UN High Commissioner for Refugees (UNHCR). There were also reports police required bribes to protect the businesses of foreigners threatened by xenophobic violence.
In August, Kingsley Ikeriwas, a Nigerian, was allegedly killed by police while being interrogated for possession of drugs. In an effort to extort information, the police placed a plastic bag over his head and suffocated him in the process. The businessman and member of the Nigerian Union in South Africa died in the hospital in Free State province.
In September another Nigerian, businessman Clement Ofoma, was arrested by police on suspicion of dealing drugs. According to his wife, police searched their house and his store but did not find any evidence. Police allegedly put a cellophane bag over his head, which caused him to lose consciousness. Ofoma later died in hospital.
As of November 28, the United Nations reported that it had received six allegations of sexual exploitation and abuse against South African peacekeepers during the year. Three allegations of exploitative relationships and three allegations of the solicitation of transactional sex were made against members of the military contingent serving with the UN Organization Stabilization Mission in the Democratic Republic of the Congo. As of November, three of the allegations were substantiated, resulting in repatriation; and three allegations were still pending investigation.
Prison and Detention Center Conditions
According to the Department of Correctional Services (DCS), many of the country’s operational prisons did not meet international standards, and prison conditions did not always meet the country’s minimum legal requirements.
Physical Conditions: In January 2016 the national commissioner for correctional services appealed to government security agencies to reduce overcrowding in the country’s correctional facilities. This followed a ruling by the High Court in December 2016 that the Pollsmoor detention facility’s inmate population be reduced to 150 percent of capacity within six months. Some prisoners believed they would be taken further away from their families, and often relatives could not afford increased travel costs.
The Judicial Inspectorate of Correctional Services (JICS) received 811 complaints of assaults on prisoners by correctional officers from April 1, 2015 to March 31, 2016. In addition to monitoring by its own employees, JICS appointed an Independent Correctional Center Visitor (ICCV) for each correctional center to monitor prison conditions. Authorities recorded and verified monthly ICCV visits in official registers kept at all correctional centers. The visitors submitted monthly reports to the inspecting judge, listing the number and duration of visits, the number of inmates interviewed, and the number and nature of inmate complaints. There were reports of shortages of prison doctors, inadequate investigation and documentation of prisoner deaths, inadequate monitoring of the prison population, high suicide rates among prisoners, and a lack of financial independence for JICS. Some detainees awaiting trial contracted HIV/AIDS through rape. Media and NGOs also reported prisoners were tortured.
According to the 2015-16 DCS annual report, the country’s correctional facilities held 159,331 prisoners in facilities designed to hold 119,134; the correctional system was 32 percent above capacity, up 3 percent from the previous year. Many prisoners had less than 13 square feet in which to eat, sleep, and spend 23 hours a day. To reduce overcrowding, the government transferred prisoners to facilities that were below capacity. JICS reported the prisoner transfer program resulted in a reduction in the number of prisons considered “critically overcrowded” (at more than 200 percent of capacity).
Prison overcrowding and poor living conditions, including lack of ventilation, contributed to the spread of disease, particularly tuberculosis.
According to its 2015-2016 annual report, DCS tested 98 percent of prisoners for HIV, dramatically improving testing over the previous year in which only 67 percent were tested. Prisons dispensed antiretroviral therapy, and 97 percent of HIV-positive prisoners received such therapy. In areas where prisons did not have medication, authorities took prisoners to local clinics to obtain it. There were no HIV screening programs on intake or discharge of prisoners, but the DCS conducted HIV prevention programs in prisons, including condom distribution, and awareness sessions throughout the country. NGOs such as the Aurum Institute, Society for Family Health, and South Africa Partners provided correctional centers with HIV testing and antiretroviral therapy. According to its 2015-2016 annual report, 21,722 inmates were placed on anti-retroviral treatment, and 199,750 inmates were voluntarily tested for HIV and informed of their status.
General health care in prisons was inadequate, and 7,574 inmates filed health-care complaints during the reporting year. Prisons provided inmates with potable water, but supplies and food were occasionally inadequate, and plumbing problems occurred, according to JICS.
The 2015-2016 DCS annual report noted prisons held 4,126 youth (individuals under age 25). Prisons sometimes held youth alongside adults, particularly in pretrial detention. Prisons generally held pretrial detainees with convicted prisoners, although in some large urban areas dedicated pretrial facilities were available.
According to the JICS report, there were 1,273 prison deaths between April 1, 2015 and March 31, 2016–511 from natural causes, including HIV/AIDS–and the remainder due to suicides, assaults, or accidents. The JICS report drew a correlation between deaths from natural causes and overcrowding, noting that less crowded conditions would likely result in a decrease of natural deaths. Inmate violence sometimes resulted in deaths.
DCS required doctors to complete and sign reports of inmate deaths to lessen the likelihood that a death caused by neglect would be reported as natural. Nevertheless, DCS failed to investigate many deaths due to an insufficient number of doctors.
Prisons provided detainees in cells with felt mattresses and blankets. Most cells had toilets and basins but often lacked chairs, adequate light, and ventilation. Food, sanitation, and medical care in detention centers were similar to those in prisons.
Prisoners with mental illness sometimes failed to receive psychiatric care.
Administration: NGOs accused DCS of moving prisoners between facilities to prevent them from reporting abuse; DCS countered that the inmates were members of rival gangs and needed to be separated.
JICS recommended DCS have an ombudsman to address juvenile confinement and improve procedures to make confinement unnecessary, but DCS had not implemented the changes by year’s end.
Prisoners are generally able to practice their faiths. In June, Muslim inmates at the Tswelopele Correctional Service in Northern Cape complained they were forced to attend Christian gatherings. The Department of Correctional Services has denied the allegations.
Corruption among prison staff remained a problem (see section 4).
Independent Monitoring: The government permitted independent monitoring of prison conditions, including visits by human rights organizations, but organizations were required to apply for permission to gain access. Organizations could also request permission to visit prisons to conduct specific research.
JICS was the primary monitoring group for prisons but was not autonomous since the DCS controlled its budget. According to JICS, during the reporting year 309 ICCVs collectively handled 456,994 cases. NGOs claimed the failure of DCS to follow up on ICCV recommendations hindered the program’s effectiveness. They also claimed many ICCVs appeared to be fully captured by DCS and lacked independence in their oversight or reporting of abuses.
Local NGO Lawyers for Human Rights (LHR) criticized conditions at the Lindell Repatriation Center, the country’s largest immigrant detention facility. According to LHR, detainees were subject to physical and verbal abuse, corruption and demands for bribes, insufficient food, lack of reading and writing materials, lack of access to recreational facilities or telephones, lack of access to and poor quality of medical care, indefinite detention without judicial review, and lack of procedural safeguards such as legal guidelines governing long-term detention.
d. Arbitrary Arrest or Detention
The constitution and law prohibit arbitrary arrest and detention, but security forces arbitrarily arrested numerous persons during the year.
ROLE OF THE POLICE AND SECURITY APPARATUS
SAPS has primary responsibility for internal security. The police commissioner has operational authority over police. The president appoints the police commissioner, but the minister of police supervises the commissioner. The South African National Defense Force, under the civilian-led Department of Defense, is responsible for external security but also has domestic security responsibilities, such as patrolling the borders. Border Control Operational Coordinating Committees–composed of representatives of SAPS, DHA (Department of Home Affairs), the defense force, the South African Revenue Service, the Department of Health, the Department of Agriculture and Fisheries, the Department of Transportation, the Department of Trade and Industry, the State Security Agency, and the Department of Environmental Affairs–are charged with overall migration and border enforcement. A committee representative is present at all land, air, and sea ports of entry to facilitate an interagency approach to border enforcement and migration management. The departments each have a representative at major border crossings; regional representatives covered lesser border crossings. The SAPS Directorate for Priority Crime Investigation (the “Hawks”) coordinates efforts against organized crime, priority crimes, and official corruption. Despite continued efforts to professionalize, SAPS remained understaffed, ill equipped, and poorly trained. Corruption continued to be a problem (see section 4).
The government investigated and prosecuted security force members who committed abuses, although there were numerous reports of police impunity, including of high-ranking members. IPID investigates complaints and makes recommendations to SAPS and to the NPA on which cases to prosecute. IPID examines all SAPS killings and evaluates whether they occurred in the line of duty and if they were justifiable. IPID also investigates cases of police abuse, although it was unable to fulfill its mandate due to funding shortages, inadequate cooperation by police, and lack of investigative capacity. When it did complete investigations, the NPA often declined to prosecute cases involving criminal actions by police and rarely obtained convictions. In cases in which IPID recommended disciplinary action, SAPS often failed to follow IPID disciplinary recommendations.
The law provides IPID with additional enforcement powers and requires SAPS and metropolitan police departments to report any suspected legal violations by their own officers to IPID. The law criminalizes the failure to report wrongdoing; in 2016-2017, IPID recorded 62 cases in which SAPS or metropolitan police departments failed to report wrongdoing to IPID.
Security forces failed to prevent or adequately respond to societal violence, particularly in response to attacks on foreigners (see sections 2.d. and 6).
Officers from SAPS and metropolitan police departments received training in ethics, human rights, corruption, sexual offenses, domestic violence, gender violence, and violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. Training, however, was inconsistent. Many officers went years between refresher courses. SAPS also provided officers with access to social workers, psychologists, and chaplains. SAPS investigations of gender-based violence crimes and crimes against LGBTI individuals were often insufficient. For example, the minister of police ordered an investigation into the handling of a murder case of a man killing his girlfriend in Limpopo. Instead of arresting the suspect, detectives waited for him to turn himself in. The deceased’s sister alleged that the suspect bribed police with food to avoid arrest. The case continued at year’s end.
ARREST PROCEDURES AND TREATMENT OF DETAINEES
The law requires that a judge or magistrate issue arrest warrants based on sufficient evidence. Police must promptly inform detainees of the reasons for their detention, their right to remain silent, and the consequences of waiving that right. Police must charge detainees within 48 hours of arrest, hold them in conditions respecting human dignity, allow them to consult with legal counsel of their choice at every stage of their detention (or provide them with state-funded legal counsel), and permit them to communicate with relatives, medical practitioners, and religious counselors. The government often did not respect these rights. Police must release detainees (with or without bail) unless the interests of justice require otherwise, although bail for pretrial detainees often exceeded what suspects could pay.
Human rights groups, judges, and judicial scholars expressed concern about the Criminal Procedure Second Amendment Act that allows pretrial detention of children and prohibits bail in certain cases. Some judges also expressed concern that police and the courts often construed the exercise of the right to remain silent as an admission of guilt.
Arbitrary Arrest: During the year there were numerous cases of arbitrary arrest, particularly of foreign workers, asylum seekers, and refugees.
Legal aid organizations reported police frequently arrested persons for minor crimes for which the law stipulates the use of a legal summons. Arrests for offenses such as common assault, failure to provide proof of identity, or petty theft sometimes resulted in the unlawful imprisonment of ordinary citizens alongside hardened criminals, which created opportunities for physical abuse.
NGOs and media outlets reported security forces arbitrarily arrested migrants and asylum seekers–even those with documentation–often because police were unfamiliar with asylum documentation. In some cases police threatened documented migrants and asylum seekers with indefinite detention and bureaucratic hurdles unless they paid bribes to obtain quick adjudication of their cases. The law prohibits the detention of unaccompanied migrant children for immigration violations, but immigrant rights NGOs reported that DHA and SAPS nevertheless detained them.
Pretrial Detention: Lengthy pretrial detention was common. According to the DCS 2015-2016 annual report, there were 45,043 pretrial detainees in the prison system. Police held approximately 1,678 detainees for more than two years (fewer than the 1,889 from the previous reporting year). According to the DCS 2015-2016 report, detainees waited an average of 176 days before trial. Observers attributed the high rate of pretrial detention to arrests without substantial evidence, overburdened courts, poor case preparation, irregular access to public defenders, and prohibitive bail amounts. Police often held detainees while prosecutors developed cases and waited for court dates. Legal scholars estimated prosecutors failed to convict 60 percent of those arrested. The law requires a review of pretrial detention once it exceeds two years.
Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Persons arrested, regardless of whether on criminal or other grounds, are entitled to challenge in court the legal basis or arbitrary nature of their detention and obtain prompt release and compensation if found to have been unlawfully detained. These rights, however, do not apply to undocumented residents in the country.
e. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected judicial independence. The judiciary, however, was understaffed and underfunded. There were numerous reports that legal documents used in trials were lost, particularly when the accused was a government official. Civil society alleged judicial corruption was a problem, although there were no proven cases of corruption during the year. According to the presidentially mandated Criminal Justice System Working Group (composed of ministers and deputy ministers), two-thirds of the estimated two million criminal cases reported annually never resulted in verdicts.
The government sometimes ignored orders from provincial high courts.
Criminal defendants enjoy a legal presumption of innocence. The constitutional bill of rights provides for due process and equal protection. The law requires police to inform detainees promptly and in detail of the charges against them, but this did not always occur, nor did police always accurately complete the charge sheets. The law requires the government to provide interpretation in all 11 official languages but this was dependent on the availability and cost of interpreters. Interpretation standards were low and sometimes compromised the veracity of exchange between the defendant and the court. Judges sometimes transferred cases from rural to urban areas to access interpreters more easily. Limited access to qualified interpreters sometimes delayed trials. Judges and magistrates hear criminal cases and determine guilt or innocence. The law requires that a panel of lay assessors and a magistrate hear cases involving murder, rape, robbery, indecent assault, and assault leading to serious bodily harm. The two assessors may overrule magistrates on questions of fact. Magistrates also may use assessors in an advisory capacity in adjudicating bail applications and sentences.
Detainees and defendants have the right to legal counsel provided and funded by the state when “substantial injustice would otherwise result,” but this right was limited due to a general lack of information regarding rights to legal representation and the government’s inability to adequately budget for such services. Defendants have the right to be present in court and may question witnesses in court and present their own witnesses and evidence. Every accused person has a right to a fair public trial, including the right to have adequate time and facilities to prepare a defense. There is no automatic right to appeal unless the accused is younger than age 16, but courts may give defendants permission to do so. Additionally, the law requires a judge to review automatically all prison sentences longer than three months.
POLITICAL PRISONERS AND DETAINEES
The opposition Inkatha Freedom Party (IFP) maintained the government had imprisoned 384 of its members since 1994 for political reasons, although international human rights organizations did not list these persons as political prisoners or detainees. In 2010 President Zuma announced he approved 154 and rejected 230 IFP applications for pardon. Following the president’s announcement, the government considered and rejected an additional six cases. The presidency continued to consider the remaining pardon requests on a case-by-case basis. In 2015 the Department of Justice announced it forwarded to the president additional recommendations for pardons for IFP members, but no additional pardons were granted by year’s end. Albert Mncwango, a former IFP member of parliament and now the mayor of Nongoma, claimed the president had no interest in resolving this matter despite assurances from the minister of justice the issue of IFP pardons was a priority.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals and organizations may seek civil remedies for human rights violations, although they may not appeal decisions to the African Court on Human and Peoples’ Rights, because the government has not made the obligatory declaration to accept the competence of the court. The government did not always comply with court decisions.
f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, but magistrates issued search warrants despite inadequate evidence. The constitution contains an explicit right to privacy, but the 2013 General Intelligence Laws Amendment Bill authorizes the interception of electronic communications known as “foreign signals intelligence” without a warrant.
The Promotion of Access to Information Act allows any person to access information from the government or any other individual for the exercise or protection of any right. Authorities could also use the act to obtain personal information in connection with criminal investigations. Opposition parties and human rights NGOs objected that its broadly defined provision enables the government to access an individual’s personal information.
Section 2. Respect for Civil Liberties, Including:
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/religiousfreedomreport/.
Section 3. Freedom to Participate in the Political Process
The law provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
Elections and Political Participation
Recent Elections: In August 2016 the country held municipal elections to elect councils for all district, metropolitan, and local municipalities in each of the nine provinces. The ANC won 54 percent of the vote, the leading opposition Democratic Alliance (DA) party 27 percent, and the Economic Freedom Fighters (EFF) 8 percent. According to the Electoral Institute for Sustainable Democracy in Africa, voter turnout was 58 percent–the highest local election turnout since the fall of apartheid. The institute said the elections were transparent, fair, credible, and in line with the constitutional and legal framework for elections.
Nevertheless, violent protests occurred prior to the election in Pretoria after some ANC members rejected the party’s choice of mayoral candidate. Protests marked by intermittent violence and looting lasted for three days. Five persons died and approximately 200 were arrested and charged with public violence, possession of unlicensed firearms and ammunition, possession of stolen property, and malicious damage to property.
In the 2014 national election, the ruling ANC won 62 percent of the vote and 249 of 400 seats in the National Assembly, the dominant lower chamber of parliament. Election observers, including the African Union and the Southern African Development Community, characterized the election as generally free and fair. The government, however, for the first time restricted diplomatic election observers to chiefs of mission only, effectively prohibiting diplomatic missions from observing elections. Following the general election, parliament re-elected Jacob Zuma as the country’s president. The DA won 89 parliamentary seats, the EFF won 25, and the IFP won 10. The remaining 27 seats in parliament were allocated to nine other political parties based on a proportional vote-count formula. In the National Council of Provinces, the upper house of parliament, the ANC held 33 seats, the DA 13, and the EFF six. The remaining two seats were allocated to two other parties.
Although violence occurred in the May 2014 election, the Independent Electoral Commission called the election the most peaceful on record. The election coincided, however, with a record number of protests over poor government services and other local grievances. The government preemptively deployed a record 20,000 police and army personnel to potential trouble spots to maintain order. There were reports of electoral irregularities, including attempted vote rigging, but the commission responded quickly to the incidents, and political parties had an opportunity to challenge results in wards where incidents occurred.
Political Parties and Political Participation: Opposition parties accused the SABC, the state-owned public broadcaster, of favoring the ruling party in its news coverage and advertising policies. Prior to the municipal elections, smaller political parties criticized the SABC for not covering their events. SABC regulations, however, dictate coverage should be proportional to the percentage of votes won in the previous election, and independent observers did not find the SABC violated this regulation.
Opposition parties claimed the ANC and DA used state resources for political purposes in the provinces under their control. Commonly prior to the municipal and national elections, the ANC had reportedly handed out government food parcels to potential voters at political rallies, tied social grants to voting for the ANC, begun (but did not complete) infrastructure projects, and created temporary government jobs for the election period for ANC voters. Through a cadre deployment system, the ruling party controls and appoints party members to thousands of civil service positions in government ministries, and provincial and municipal governments. During the year the ANC requested political contributions from all civil servants.
Opposition parties accused ANC members of interference in or interruption of opposition party meetings, assaults and threats of assault, and punishing opposition party members by denying them jobs, contracts, and services. Intimidation allegedly included aggressive taunting chants and dances (toyi-toying) outside opposition party meetings to disrupt proceedings. This sometimes devolved into threats against persons entering and exiting meetings, mock charges, and, in rare cases, assault or murder. In some cases local ruling party leaders denied opposition parties permission to rent public facilities for political meetings. Opposition parties that won previously ANC-governed municipalities in the 2016 local elections accused the ANC of disruption and blocking government efforts and service delivery to municipal residents.
During the State of the Nation Address, which marks the opening of parliament, parliamentary security physically removed EFF members of parliament after the party’s interjections delayed proceedings for more than an hour. The forced removal resulted in a physical altercation between the EFF and security personnel. DA members of parliament walked out of parliament in protest over the heavy-handed security presence. Opposition parties filed legal action against the ANC speaker of the assembly for militarizing parliamentary proceedings; the case was still pending in court.
There were reports government officials publicly threatened to boycott private businesses that criticized government policy.
Participation of Women and Minorities: No laws limit the participation of women and/or members of minorities in the political process, and women and minorities participated. Cultural factors, however, limited women’s political participation. There were an estimated 77 minority (nonblack) members in the 400-seat National Assembly. There were nine minority members among the 54 permanent members of the National Council of Provinces and five minority members in the 72-member cabinet.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for conviction of official corruption, and the government continued efforts to curb corruption, but officials sometimes engaged in corrupt practices with impunity.
Corruption: During the year the Office of the Public Protector, a constitutionally mandated body designed to investigate government abuse and mismanagement, investigated thousands of cases, some of which involved high-level officials. The public and NGOs considered the Office of the Public Protector independent and effective, despite limited funding. According to the NPA’s 2016-2017 Annual Report, 29 persons were convicted of corruption in cases where the total value of assets seized exceeded five million rand ($378,000), and 224 government officials were convicted of corruption.
In September lawyers for President Jacob Zuma conceded in an appeals court that the NPA’s dropping of 783 corruption charges against the president in 2009 was irrational. In October the Supreme Court of Appeal reinstated the charges, opening the door for future prosecution of the president.
One prominent case from the year commonly known as “GuptaLeaks” revealed corruption in various government departments and the private sector in emails passed to the press. Anoj Singh, Chief Financial Officer of South Africa’s state-owned electric company, Eskom, was implicated in a string of corrupt deals following the leaks, including receiving gifts from and making company decisions to the benefit of the Guptas, an Indian-born, South African family that owns a multisector business empire. On July 27, after significant pressure from its lenders, Eskom suspended Singh pending an investigation into the allegations. The investigation continued.
Corruption remained a problem in prisons. According to the 2015-2016 JICS report, there were 941 complaints of corruption in prisons during the annual reporting period. At least 10 agencies, including the SAPS Special Investigation Unit, Public Service Commission, Office of the Public Prosecutor, and Office of the Auditor General, were involved in anticorruption activities.
Financial Disclosure: Public officials, including members of national and provincial legislatures, all cabinet members, deputy ministers, provincial premiers, and members of provincial executive councils, are subject to financial disclosure laws and regulations, but some failed to comply, and departments filed the majority of their reports late. The declaration regime clearly identifies which assets, liabilities, and interests public officials must declare. Government officials are required to declare publicly their financial interests when they enter office, and there are administrative and criminal sanctions for noncompliance, but no defined unit is mandated to monitor and verify disclosures of government officials. The government made declarations by government officials public, but not those of their spouses or children. In 2016 the Department of Public Service and Administration (DPSA) promulgated revised public service regulations prohibiting employees of departments from doing business with the state, strengthened requirements for disclosure of financial interests and requirements for application for approval of additional remunerative work. DPSA also implemented the eDisclosure system to simplify the process of annual disclosure of financial interests. The auditor general’s 2015-2016 report noted in the case of the Department of Correctional Services and Human Settlements, public servants who had private or business interest in contracts awarded by the aforementioned departments failed to disclose such interests. The amounts of the contracts, however, were not stated.
In the case of the Eastern Cape provincial government, the auditor general’s report stated irregular expenditure in the province’s finances was due to widespread conflict of interest and non-adherence to supply chain management and contracts requirements. Awards made to employees, their close family members, and employees in the service of the state where a conflict of interest existed amounted to 297 million rand ($20 million).
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Rape and Domestic Violence: Rape, including spousal rape, is illegal and remained a serious and pervasive problem. The minimum sentence for rape is 10 years in prison for the first offense. Under certain circumstances, such as second or third offenses, multiple rapes, gang rapes, or the rape of a minor or a person with disabilities, conviction results in a minimum sentence of life imprisonment (25 years), unless substantial and compelling circumstances exist to justify a lesser sentence. Perpetrators with previous rape convictions and perpetrators aware of being HIV positive at the time of the rape also face a minimum sentence of life imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence.
In most cases attackers were acquaintances or family members of the victim, which contributed to a reluctance to press charges, as did a poor security climate and societal attitudes. From April 2016 to March 2017, 39,828 cases of rape were reported. According to the 2016-2017 NPA Annual Report, the conviction rate for sexual offense crimes was 72 percent. This was, however, only related to cases that went to trial. A recent Medical Research Council study on the investigation, prosecution, and adjudication of reported rape cases concluded only 18.5 percent of all cases reported went to trial and only 8.6 percent of cases resulted in a verdict of guilty. Prosecutors chose not to prosecute many cases due to insufficient evidence. Poor police training, insufficient forensic lab capacity, a lack of trauma counseling for victim witnesses, and overburdened courts contributed to the low conviction rate.
The Department of Justice operated 57 dedicated sexual-offenses courts throughout the country. Although judges in rape cases generally followed statutory sentencing guidelines, women’s advocacy groups criticized judges for using criteria such as the victim’s behavior or relationship to the rapist as a basis for imposing lighter sentences.
The NPA operated 55 rape management centers, or TCCs (Thuthuzela Care Centers). All TCCs were located at hospitals. Of rape cases brought to TCCs, 47 percent went to trial and were terminated–by either conviction or acquittal–within nine months from the date a victim reported the case.
Domestic violence was pervasive and included physical, sexual, emotional, and verbal abuse, as well as harassment and stalking. The government prosecuted domestic violence cases under laws governing rape, indecent assault, damage to property, and violating a protection order. The law requires police to protect victims from domestic violence, but police commanders did not always hold officers accountable. Conviction of violating a protection order is punishable by a prison sentence of up to five years, or up to 20 years if additional criminal charges apply. Penalties for conviction of domestic violence include fines and sentences of between two and five years’ imprisonment.
The government financed shelters and rape-support centers for abused women, but more were needed, particularly in rural areas. The government conducted rape and domestic violence awareness campaigns. In honor of Women’s Month, the government hosted numerous events focused on empowering women in business, government, health, sports, and the arts. The discussions generated controversy, however, because the government focused on men’s role in protecting women, while civil society advocated a more inclusive focus on gender-based violence. Many civil society organizations were also dissatisfied with the Ministry of Women’s general focus on women’s economic empowerment while neglecting the issue of gender-based violence.
According to SAPS the number of incidents of violence against women and children had drastically increased nationwide. For example, in August former deputy minister of higher education Mduduzi Manana pled guilty to charges of assaulting three women; he was fired from his ministerial position and awaited sentencing. In April, Karabo Mokoena was killed, allegedly by her boyfriend. Mokoena’s charred remains were discovered in an open field in Johannesburg. The trial of the accused, Sandile Mantsoe, was set for March 2018.
Female Genital Mutilation/Cutting (FGM/C): The law prohibits FGM/C, but girls in isolated zones in ethnic Venda communities in Limpopo province were subjected to the practice. The government continued initiatives to eradicate the practice, including national research and sensitization workshops in areas where FGM/C was prevalent.
Sexual Harassment: Although the law prohibits sexual harassment, it remained a widespread problem. With criminal prosecution a rare secondary step that the complainant must request, the government left enforcement primarily to employers. The Department of Labor issued guidelines to employers on how to handle workplace complaints that allow for remuneration of the victim’s lost compensation plus interest, additional damages, legal fees, and dismissal of the perpetrator in some circumstances.
Coercion in Population Control: There were no reports of coerced abortion, involuntary sterilization, or other coercive population control methods. Estimates on maternal mortality and contraceptive prevalence are available at: .
Discrimination: Discrimination against women remained a serious problem despite legal equality in family, labor, property, inheritance, nationality, divorce, and child custody matters. Women experienced economic discrimination in wages (see section 7.d.), extension of credit, and ownership of land.
Traditional patrilineal authorities, such as a chief or a council of elders, administered many rural areas. Some traditional authorities refused to grant land tenure to women, a precondition for access to housing subsidies. Women could challenge traditional land tenure decisions in national courts, but access to legal counsel was costly.
According to the Employment Equity Amendment Act, any difference in the terms or conditions of employment among employees of the same employer performing the same, substantially similar, or equal value work constitutes discrimination. The act expressly prohibits unequal pay for work of equal value and discriminatory practices, including unequal pay and separate pension funds for different groups in a company (see section 7.d.).
According to the Labor Department’s 2016-17 Employment Equity Report, women held 22 percent of top management positions, 33 percent of senior management positions, and 46 percent of professional positions. Women held 39 percent of public sector senior management positions.
The minister of women in the Presidency, the Commission for Gender Equality, the Commission for Employment Equity, and a number of other government bodies monitored and promoted women’s rights, as did numerous NGOs and labor unions.
Birth Registration: The law provides for citizenship by birth (if at least one parent is a permanent resident or citizen), descent, and naturalization. Nevertheless, registration of births was inconsistent, especially in remote rural areas or among parents who were unregistered foreign nationals. Children without birth registration had no access to free government services such as education or healthcare, and their parents had no access to financial grants for their children. For additional information, see Appendix C.
Education: Public education is compulsory until age 15 or grade nine. Public education was fee-based and not fully subsidized by the government. Nevertheless, the law provides that schools may not refuse admission to children due to a lack of funds; disadvantaged children, who were mainly black, were eligible for assistance. Even when children qualified for fee exemptions, low-income parents had difficulty paying for uniforms and supplies.
Child Abuse: Violence against children, including domestic violence and sexual abuse, remained widespread.
Some teachers and other school staff harassed, abused, raped, and assaulted students in schools, according to reports. The law requires schools to disclose sexual abuse to authorities, but administrators sometimes concealed sexual violence or delayed disciplinary action.
Student-on-student violence, including racially motivated violence and drug-related violence, was a problem.
Early and Forced Marriage: Parental or judicial consent to marry is required for individuals younger than 18. Nevertheless, the traditional practice of “ukuthwala,” the arranged marriage of girls as young as age 12 to older men, occurred in remote villages in Western Cape, Eastern Cape, and KwaZulu-Natal provinces. In 2015 the president promulgated the Prevention and Combating of Trafficking in Persons Bill that prohibits nonconsensual ukuthwala and classifies it as a trafficking offense. According to the 2016 State of the World’s Children Report of the UN Children’s Fund, 6 percent of girls in the country were married before age 18. For additional information, see Appendix C.
Sexual Exploitation of Children: Penalties for conviction of sexual exploitation of a child include fines and imprisonment of up to 20 years. By law the age of consent is 16. The statutory sentence for rape of a child is life in prison, although the law grants judicial discretion to issue sentences that are more lenient.
The law prohibits child pornography and provides for penalties including fines and imprisonment of up to 10 years. The Film and Publications Board maintained a website and a toll-free hotline for the public to report incidents of child pornography.
Traffickers in the sex trade exploited other children. Traffickers often recruited children from poor rural areas and moved them to urban centers such as Bloemfontein, Cape Town, Durban, and Johannesburg. NGOs provided shelter, medical, and legal assistance for children in prostitution and a hotline for victims of child abuse.
International Child Abductions: The country is a party to the 1980 Hague Convention on Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.
The South African Jewish Board of Deputies estimated the Jewish community at 75,000 to 80,000 persons. There were reports of verbal abuse, hate speech, harassment, and attacks on Jewish persons or property. Government and political representatives were quoted throughout the year making anti-Semitic statements.
In January twin brothers Brandon Lee Thulsie and Tony Lee Thulsie appeared in court to face charges of contravening the Protection of Constitutional Democracy Against Terror and Related Activities. The brothers, along with two others, who were alleged to have links to ISIS, were arrested in 2016 for allegedly planning to set off explosives at a foreign embassy in Pretoria and Jewish institutions in the country. The case continued at year’s end.
On June 29, the South African Equality Court ruled that Bongani Masuku, International Relations Secretary of the Congress of South African Trade Unions, issue a formal apology to the South African Jewish community for anti-Semitic comments he made in 2009. On May 29, a high school student from Edenvale High School in Johannesburg interrupted a Holocaust-related theater performance with anti-Semitic statements. The student and the school’s principal later apologized and the school agreed to work with the Jewish community to improve sensitivity training for students.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
Persons with Disabilities
The law prohibits discrimination based on physical, sensory, intellectual, and mental disability in employment or access to health care, the judicial system, and education. Department of Transportation policies on providing services to persons with disabilities were consistent with the constitution’s prohibition on discrimination. The Department of Labor ran vocational centers at which persons with disabilities learned skills to earn a living. Nevertheless, government and private-sector discrimination existed. The law mandates access to buildings for persons with disabilities, but such regulations were rarely enforced, and public awareness of them remained minimal.
According to the 2016-2017 Annual Report of the Department of Basic Education , there were numerous barriers to education for students with disabilities, primarily a policy of channeling students into specialized schools at the expense of inclusive education. Separate schools frequently charged additional fees (making them financially inaccessible), were located long distances from students’ homes, and lacked the capacity to accommodate demand. Children often were housed in dormitories with few adults, many of whom had little or no training in caring for children with disabilities. When parents attempted to force mainstream schools to accept their children with disabilities–an option under the law–schools sometimes rejected the students outright because of their disabilities or claimed there was no room. Many blind and deaf children in mainstream schools received only basic care rather than education.
The law prohibits harassment of persons with disabilities and, in conjunction with the Employment Equity Act, provides guidelines on the recruitment and selection of persons with disabilities, reasonable accommodation for persons with disabilities, and guidelines on proper handling of employees’ medical information. Enforcement of this law was limited. The law also requires employers with more than 50 workers to create an affirmative action plan with provisions to achieve employment equity for persons with disabilities (see section 7.d.). Nevertheless, persons with disabilities constituted only an estimated 1.2 percent of the workforce and the government did not meet its goal of filling 2 percent of government positions with persons with disabilities by year’s end.
Persons with disabilities were sometimes subject to abuse and attacks, and prisoners with mental disabilities often received no psychiatric care. According to the 2016 Optimus Study, children with disabilities were 78 percent more likely than children without disabilities to have experienced sexual abuse in the home.
According to the umbrella advocacy group Disabled People South Africa there were 15 persons with disabilities in the upper and lower houses of parliament and 218 elected officials with disabilities at the provincial and municipal levels. The law does not allow persons identified by the courts as mentally disabled to vote.
The Department of Social Development has primary responsibility for disability policy. All provincial and local governments also have offices charged with protecting the rights of persons with disabilities, and there are representatives advocating for persons with disabilities at the Commission for Gender Equality and the SAHRC. NGOs also advocated for the rights of persons with disabilities.
A 2014 study by the South African Federation for Mental Health found that of the 20 percent of citizens with mental disabilities, 75 percent did not receive needed care. There were approximately 80 mental health treatment facilities in the country, and more than half were run by NGOs, well short of the facilities needed.
In September a video clip of a Johannesburg woman on a bus beating a pupil with a disability went viral. In the clip the pupil, who has bipolar disorder, is seen being beaten with bare fists. The bus driver is seen stopping the altercation and forcefully pushing the child off the bus. The attacker, a school cook, was charged with assault and suspended. The bus driver was also suspended.
The law requires employers with 50 or more employees to provide for previously disadvantaged groups, legally defined as “Africans or blacks,” “Coloureds,” and “Asians” (collectively constituting more than 90 percent of the population) to be represented adequately at all levels of the workforce. Nevertheless, blacks remained underrepresented, at the professional and managerial levels (see section 7.d.). According to the 2016-2017 Employment Equity Report, whites occupied 69 percent of top management positions, 58 percent of senior management positions, and 38 percent of professionally qualified positions, while comprising only 10 percent of the population.
Incidents of racism continued. In March a video clip of a white man threatening to attack a black woman inside a restaurant went viral on social media. The man had approached the woman to alert her that his child was bullied by her child, to which the woman responded that his child was the one who started the bullying.
In July a white man out with a group of friends allegedly made a racist remark to a group of black Stellenbosch University students. A physical alteration ensued between the two groups; one of the black students suffered a bloodied nose and another an injured jaw. No one was arrested.
Xenophobic attacks on foreign African migrants and ethnic minorities occurred and sometimes resulted in death, injury, and displacement. Incidents of xenophobic violence generally were concentrated in areas characterized by poverty and lack of services. Citizens blamed immigrants for increased crime and the loss of jobs and housing. According to researchers from the African Center for Migration and Society, perpetrators of crimes against foreigners enjoyed relative impunity.
Local community or political leaders who sought to gain notoriety in their communities allegedly instigated some attacks. The government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but more often, the response was slow and insufficient. Since 2013 the government significantly reduced the number of assaults and deaths by evacuating individuals from communities affected by xenophobic violence, although little was done to protect property owned by foreign nationals. Civil society organizations criticized the government for failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreigners, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators.
The NGO Working Group of Indigenous Minorities in Southern Africa estimated there were 7,500 indigenous San and Khoi in the country, some of whom worked as farmers or farm laborers. By law the San and Khoi have the same political and economic rights as other citizens, although the government did not always effectively protect those rights or deliver basic services to indigenous communities. Indigenous groups complained of exclusion from land restitution, housing, and affirmative action programs. They also demanded formal recognition as “first peoples” in the constitution. Their lack of recognition as “first peoples” excluded their leadership from government-recognized structures for traditional leaders. Their participation in government and the economy was limited due to fewer opportunities, lack of land or other resources, minimal access to education, and relative isolation (see section 7.d.).
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
The law outlaws discrimination based on sexual orientation. According to a study by the NGO The Other Foundation, more than 50 percent of citizens believed that LGBTI individuals should have the same human rights as other citizens, although more than 70 percent of respondents believed same-sex sexual activity was morally wrong. This cultural attitude influenced service delivery by individual government employees at the local level. NGOs reported the prevailing culture also negatively influenced hiring practices by local firms, particularly for transgender and intersex individuals.
There were reports of official mistreatment or discrimination based on sexual orientation or gender identity despite clear government policies prohibiting discrimination. Security force members, for example, reportedly raped LGBTI individuals during arrest. A 2015 Human Rights Watch report highlighted violence and discrimination, particularly against lesbians and transgender individuals in the country. The report documented cases of “secondary victimization” of lesbians, including cases in which police harassed, ridiculed, and assaulted victims of sexual- and gender-based violence who reported abuse. According to the 2014 Khayelitsha Commission of Inquiry Report, LGBTI individuals were particularly vulnerable to violent crime due to anti-LGBTI attitudes within the community and among police. Anti-LGBTI attitudes among junior members of SAPS affected how SAPS handled complaints by LGBTI individuals, and management did not always address the problem.
In 2015 the country’s LGBTI rapid response team, a body consisting of various government agencies and NGOs, analyzed more than 200 hate crimes cases labeled as “stalled” by civil society. The NPA closed approximately 80 of the cases due to lack of evidence or unavailability of witnesses, but it advanced and concluded 23 cases with convictions, some resulting in life sentences. The NPA and SAPS continued to investigate the remaining cases. The task team has also made progress in educating local government officials and the public about equal rights for the LGBTI community.
In April, Nonkie Smous, a lesbian in Kroonstad, was gang-raped, murdered, and set on fire. On previous occasions she was both raped and gang-raped because of her sexual orientation. No arrests were made.
In September an Equality Court case ended in victory for a lesbian who was banned from a restaurant’s “straight couples only” date night events. In 2016 Mia Agrela had made a reservation for the restaurant’s weekly date night evening with her partner. She was informed in a follow up message that “no same sex couples” were allowed, so she filed a discrimination case in the Equality Court. The restaurant agreed to stop excluding same-sex couples from its events and the owners agreed to apologize for their actions and to undergo sensitivity training.
HIV and AIDS Social Stigma
The social stigma associated with HIV/AIDS remained a problem, especially in rural communities. In 2015 the South African National AIDS Council (SANAC)–a joint body composed of government, academic, and civil society representatives released a landmark People Living with HIV Stigma Index. The council surveyed more than 10,000 HIV-positive individuals about their experiences with social stigma. For additional information, see Appendix C.
Forty-three percent of respondents of all socioeconomic groups reported internal stigma, or negative feelings toward themselves. Internal stigma had a profound impact on social participation, with 32 percent of respondents deciding not to have children because of their status, 15 percent deciding not to marry, 12 percent choosing not to attend social gatherings, and 10 percent isolating themselves from family and friends. Those most likely to experience internal stigma were between ages 15 to 24, in their first year of HIV-positive status, and lacking formal education.
Of those surveyed who disclosed their status to family or friends, most found family or friends to be supportive. Most respondents disclosed their status–89 percent to their partners and 68 percent to their children. Approximately 28 percent suggested their status might have been disclosed without their consent, 24 percent were unsure whether their status might have been disclosed, and 30 percent were unsure if their medical records were kept confidential.
SANAC lately played a leading role in driving a comprehensive 360-degree Stigma and Discrimination Mitigation Program, presenting a multisectoral response that included PLHIV organizations, SAG agencies, civil society, and development partners.
Other Societal Violence or Discrimination
There were reports that persons accused of witchcraft were attacked, driven from their villages, and in some cases killed, particularly in Limpopo, Mpumalanga, KwaZulu-Natal, and Eastern Cape provinces. Victims were often elderly women. Traditional leaders generally cooperated with authorities and reported threats against persons suspected of witchcraft.
Persons with albinism faced discrimination and were sometimes attacked in connection with ritual practices.
Ritual (“muthi”) killings to obtain body parts believed by some to enhance traditional medicine persisted. Police estimated organ harvesting for traditional medicine resulted in 50 deaths per year.
Incidents of vigilante violence and mob killings occurred, particularly in Gauteng, Mpumalanga, Eastern Cape, and KwaZulu-Natal provinces.
Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law allows all workers, with the exception of members of the National Intelligence Agency and the Secret Service, to form and join independent unions of their choice without previous authorization or excessive requirements. According to the 2017 South Africa Survey (conducted by the Institute of Race Relations), 3.7 million workers belonged to unions. According to the Department of Labor, as of July there were 192 registered unions. The law allows unions to conduct their activities without interference and provides for the right to strike, but it prohibits workers in essential services from striking, and employers are prohibited from locking out essential service providers. The government characterizes essential services as: (a) a service, the interruption of which endangers the life, personal safety, or health of the whole or part of the population; (b) the parliamentary service; or (c) members of SAPS.
The law allows workers to strike over matters of mutual interest, such as wages, benefits, organizational rights disputes, socioeconomic interests of workers, and similar measures. Workers may not strike over disputes where other legal recourse exists, such as through arbitration. Labor rights NGOs operated freely.
The law protects collective bargaining and prohibits employers from discriminating against employees or applicants on the basis of past, present, or potential union membership or participation in lawful union activities. According to Statistics South Africa’s 2015 First Quarter Labor Force Survey, unions negotiated salary increments for 75 percent of workers in sectors where unions organized. Fifty-six percent of workers had their salary increments determined solely by their employers, and approximately 5.5 percent of workers had no regular salary increment. The law provides for automatic reinstatement of workers dismissed unfairly for conducting union activities. The law provides a code of good practices for dismissals that includes procedures for determining the “substantive fairness” and “procedural fairness” of dismissal. The law includes all groups of workers, including illegal and legally resident foreign workers.
The government respected freedom of association and the right to collective bargaining. Labor courts and labor appeals courts effectively enforced the right to freedom of association and the right to collective bargaining.
Worker organizations were independent of the government and political parties, although the Congress of South African Trade Unions (COSATU), the country’s largest labor federation, is a member of a tripartite alliance with the governing ANC party and the South African Communist Party. Some COSATU union affiliates lobbied COSATU to break its alliance with the ANC, arguing the alliance had done little to advance workers’ rights and wages. On April 21, COSATU’s breakaway unions, unhappy with the ANC alliance, launched an independent labor federation, the South African Federation of Trade Unions.
The labor registrar, who was dismissed by the minister of labor in 2015 for attempting to enforce labor law on ANC-aligned COSATU unions, was reinstated in his position in 2016 after the labor court found the minister’s dismissal of the registrar to be unreasonable, irrational, and procedurally unjust.
The minister of labor has the authority to extend agreements by majority employers (one or more registered employers’ organizations that represent 50 percent plus one of workers in a sector) and labor representatives in sector-specific bargaining councils to the entire sector, even if companies or employees in the sector were not represented at negotiations. Companies not party to bargaining disputed this provision in court. Employers often filed for and received labor department exemptions from collective bargaining agreements.
If not resolved through collective bargaining, independent mediation, or conciliation, disputes between workers in essential services and their employers were referred to arbitration or the labor courts.
Workers frequently exercised their right to strike. Trade unions generally followed the legal process of declaring a dispute (notifying employers) before initiating a strike. Sectors affected by strikes during the year included transportation, healthcare, academia, municipal services, and mining. Strikes were sometimes violent and disruptive. Minority unions often encouraged their members to join strikes led by majority unions for their own safety since strikebreakers sometimes encountered violence. For example, on June 16, striking members of the Association of Mineworkers and Construction Union (AMCU) physically assaulted nonstriking workers during a wildcat strike at Sibanye Gold’s Cooke mine, west of Johannesburg.
In March the government announced it had set aside 1.1 billion rand ($83 million) to compensate surviving family members and victims of the 2012 Marikana Massacre and the surviving family members of those killed in the lead-up to it. Legal representatives were consulting the surviving family members on the terms of the settlement, and only one settlement, for 3.9 million rand ($293,000), was reached.
During the year there were no credible cases of antiunion discrimination or employer interference in union functions, although anecdotal evidence suggested farmers routinely hampered the activities of unions on farms.
Rivalry and intolerance between unions were common. On September 12, two senior members of AMCU were killed due to alleged internal infighting. An AMCU health and safety officer was also killed on September 23 at his home in Marikana, North West province. On September 2, tribal-based violence broke out among Basothos, Xhosas, and Batswanas who belonged to the National Union of Mineworkers and who allegedly preferred to elect union leaders according to their ethnic groups at the branch congress in Matlosane, North West province.
b. Prohibition of Forced or Compulsory Labor
Although the law prohibits all forms of forced or compulsory labor, the government did not consistently or effectively enforce the law.
The law prohibits forced labor and provides for penalties ranging from fines to three years in prison for perpetrators convicted of forced labor. The penalties were insufficient to deter violations, in part because inspectors typically levied fines and required payment of back wages in lieu of meeting evidentiary standards of criminal prosecution. The Prevention and Combatting of Trafficking in Persons Act of 2013 increased maximum fines for forced labor to 100,000 rand ($7,140) and the maximum criminal sentence to life in prison.
Boys, particularly migrant boys, were reportedly forced to work in street vending, food services, begging, criminal activities, and agriculture (see section 7.c.). Women from Asia and neighboring African countries were recruited for legitimate work in South Africa, where some were subjected to domestic servitude or forced labor in the service sector.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
c. Prohibition of Child Labor and Minimum Age for Employment
The law prohibits employment of children under age 15, and prohibits anyone from requiring or permitting a child under age 15 to work. The law allows children under age 15 to work in the performing arts, however, if their employers receive permission from the Department of Labor and agree to follow specific guidelines. The law also prohibits children between ages 15 and 18 from work that threatens a child’s wellbeing, education, physical or mental health, or spiritual, moral, or social development. Children may not work more than eight hours a day or before 6 a.m. or after 6 p.m. A child not enrolled in school may not work more than 40 hours in any week, and a child attending school may not work more than 20 hours in any week.
The law prohibits children from performing hazardous duties, including lifting heavy weights, meat or seafood processing, underground mining, deep-sea fishing, commercial diving, electrical work, working with hazardous chemicals or explosives, in manufacturing, rock and stone crushing, and work in casinos or other gambling and alcohol-serving establishments. Employers may not require a child to work in a confined space or to perform piecework and task work. Violation of child labor law is punishable by a maximum prison sentence of six years and a fine of 15,000 rand ($1,100).
The government enforced child labor laws in the formal sector of the economy that strong and well-organized unions monitored, but enforcement in the informal and agricultural sectors was inconsistent. The Department of Labor deployed specialized child labor experts in integrated teams of child labor intersectoral support groups to each province and labor center.
On September 6, Department of Labor inspectors opened 22 cases of child labor against a broker who recruited seasonal workers from poverty-stricken villages in North West province on behalf of farmers in Wesselsbron, Free State province. Cases were still being investigated. Cases of the worst forms of child labor were rare and difficult to detect, and neither the Department of Labor nor NGOs confirmed any cases during the year. The Department of Labor investigated a number of complaints but was unable to develop enough evidence to file charges. According to the department, the government made significant progress in eradicating the worst forms of child labor by raising awareness, putting strict legal measures in place, and increasing penalties for suspected labor violators.
Children were found working in domestic work, street work, and garbage scavenging for food items and recyclable items. Boys, particularly migrant boys, were reportedly forced to work in street vending, food services, begging, criminal activities, and agriculture. The government had yet to collect comprehensive data on child labor, but NGOs and inspectors considered it rare in the formal sectors of the economy.
d. Discrimination with Respect to Employment and Occupation
The Employment Equity Act protects all workers against unfair discrimination on the grounds of race, age, gender, religion, marital status, pregnancy, family responsibility, ethnic or social origin, color, sexual orientation, disability, conscience, belief, political, opinion, culture, language, HIV status, birth, or any other arbitrary ground. According to a 2014 amendment to the act, a contractor or part-time employee must be treated as a full-time employee after three months of service, unless he/she meets a defined list of exceptions. The legal standard used to judge discrimination in all cases is whether the terms and conditions of employment between employees of the same employer performing the same or substantially similar work, or work of equal value, differ directly or indirectly based on any of the grounds listed above. Employees have the burden of proving such discrimination. The amendment increases fines incrementally for noncompliance to two percent of company revenue, or 1.5 million rand ($113,000), for a first offense. Authorities may fine up to 10 percent of company revenue, or 2.7 million rand ($203,000), for a fourth offense on the same provision within three years. The government has a regulated code of conduct to assist employers, workers, and unions to develop and implement comprehensive, gender-sensitive, and HIV/AIDS-compliant workplace policies and programs.
Discrimination in employment and occupation occurred with respect to race, gender, disability, sexual orientation, HIV status, and country of origin (see section 6).
Discrimination cases were frequently taken to court or the Commission for Conciliation, Arbitration, and Mediation.
In its 2016-2017 annual report released in May that surveyed 26,255 companies, the Commission for Employment Equity cited figures indicating discrimination by ethnicity, gender, age, and disability in all sectors of the economy. According to the report, whites–who constituted only 9.9 percent of the economically viable population–held 69 percent of top management positions in the private sector. Blacks–who constituted 77 percent–held only 14 percent. The implementation of the Black Economic Empowerment law, which aims to promote economic transformation and enhance participation of blacks in the economy, continued. The public sector better reflected the country’s ethnic and gender demographics. Traditional gender stereotypes, such as “mining is a man’s job” and “women should be nurses” persisted. Bias against foreigners was common in society and the workplace. During the year labor department officials reviewed 831 companies for compliance with the employment equity law, exceeding the department’s target of 750 reviews. The Department of Labor inspected 5022 designated employers, exceeding the department’s target of 4729.
e. Acceptable Conditions of Work
There is no legally mandated national minimum wage, although the law gives the Department of Labor authority to set wages by sector. The department increased the minimum wage for farm workers to 15.39 rand ($1.20) per hour. The minimum hourly wage for domestic workers employed more than 27 hours per week was raised from 11.27 rand to 11.44 rand ($0.80 to $0.82) per hour for employers in the urban areas and from 9.80 rand to 10.23 rand ($0.70 to 0.73) for employers in semi-urban and rural areas. The government provided free housing for some employees earning less than 3,500 rand ($260) per month, free health care, and, in some areas, no-fee schooling to assist the children of low-income earners. The law protects migrant workers, and they are entitled to all benefits and equal pay.
The law establishes a 45-hour workweek, standardizes time-and-a-half pay for overtime, and authorizes four months of maternity leave for women. No employer may require or permit an employee to work overtime except by agreement, and overtime may not be more than 10 hours a week. The law stipulates rest periods of 12 consecutive hours daily and 36 hours weekly and must include Sunday. The law allows adjustments to rest periods by mutual agreement. A ministerial determination exempted businesses employing fewer than 10 persons from certain provisions of the law concerning overtime and leave. Farmers and other employers could apply for variances from the law by showing good cause. The law applies to all workers, including workers in informal sectors, foreigners, and migrant workers. The government did not provide social protections for workers in the informal economy.
The government set occupational health and safety standards through the Department of Mineral Resources for the mining industry and through the Department of Labor for all other industries.
There are harsh penalties for violations of occupational health in the mining sector, which has separate legislation with strict deterrents to protect mineworkers. Employers are subject to heavy fines or imprisonment for serious injury, illness, or the death of employees due to unsafe mine conditions. The law allows mine inspectors to enter any mine at any time to interview employees and audit records. The law provides for the right of mine employees to remove themselves from work deemed dangerous to health or safety. The law prohibits discrimination against a mining employee who asserts a right granted by law and requires mine owners to file annual reports providing statistics on health and safety incidents for each mine. Violation of the mining health and safety law is punishable by two years’ imprisonment, and the law empowers the courts to determine a fine or penalty applicable for perjury. The Department of Mineral Resources was responsible for enforcing the mining health and safety law. The government, however, did not effectively enforce the law.
The government set separate standards for compensation of occupational diseases for the mining industry and for other industries. The government did not effectively enforce these laws. The Department of Health’s fund related to the Occupational Diseases in Mines and Works Act reported that only 33,045 former mineworkers were certified as having silicosis as of 2014, but the final figure could be between 50,000 and 100,000. The fund has set aside 3.7 billion ($278 million) to deal with the backlog and compensate former mineworkers. In 2016 the Johannesburg High Court certified class action against 32 gold-mining companies operating in South Africa from 1965 to the present by mineworkers suffering from silicosis and tuberculosis contracted at the companies’ mines. The companies were accused of insufficiently protecting black workers in particular from contracting lung-related diseases. The landmark judgement paved the way for nearly 500,000 current and former mineworkers to sue mining companies. Companies have lodged an appeal against the judgement, which was yet to been heard by the courts.
Outside the mining industry, no laws or regulations permit workers to remove themselves from work situations deemed dangerous to their health or safety without risking loss of employment, although the law provides that employers may not retaliate against employees who disclose dangerous workplace conditions. Employees were also able to report unsafe conditions to the labor department, which used employee complaints as a basis for prioritizing labor inspections. Violation of health and safety law outside the mining sector is punishable by a fine of 100,000 rand ($7,500) and/or imprisonment for a period not exceeding two years. The Department of Labor was responsible for enforcing safety laws outside the mining sector. The government, however, did not effectively enforce the law. Unions in the agriculture sector have noted their repeated attempts to have the Labor Department enforce fines on farms where protection to shield workers from hazardous chemicals sprayed on crops is not provided.
The Department of Labor is responsible for enforcing wage standards outside the mining sector, and a tripartite Mine Health and Safety Council and an Inspectorate of Mine Health and Safety enforced such standards in the mining sector. Penalties for violations of wages and work-hour standards outside the mining sector were not sufficient to deter violations.
The government employed 1,312 labor inspectors countrywide, a number considered insufficient to investigate reports of labor abuses in a total workforce of 18.6 million. For example, 107 government labor inspectors in Western Cape Province had responsibility for more than 6,600 farms as well as other businesses and sectors. Labor inspectors conducted routine and unannounced inspections at various workplaces that employed vulnerable workers. Labor inspectors investigated workplaces in both the formal and informal sectors. Labor inspectors and unions had difficulty visiting workers on private farms.
The Department of Labor reported it conducted 146,307 labor inspections against a target of 135,356 in 2015-16, resulting in findings of noncompliance in 20,546 cases. The department issued violation notices and referred cases for prosecution. The labor department conducted 62 of 994 requested investigations on work permit cases within five days and 498 of 513 inspections on work permit cases within 25 days. During the year officials audited 22,423 workplaces to determine their compliance with occupational and safety laws; 15,929 were not in compliance.
While labor conditions improved on large commercial farms, COSATU and leading agricultural NGOs reported that labor conditions on small farms remained harsh. Underpayment of wages and poor living conditions for workers, most of whom were black, were common. Many owners of small farms did not measure working hours accurately, 12-hour workdays were common during harvest time, and few farmers provided overtime benefits. Amendments to the Basic Conditions of Employment Act attempted to address some labor abuses at farms. For example, changes prohibited farms from selling farm employees goods from farm-operated stores on credit at inflated prices.
In February, 14 farm workers were dismissed at a farm in North West province for refusing to handle chemicals without protective gear. Workers could not claim the Unemployment Insurance Fund benefit as the farmers had not registered the workers with the Department of Labor as required by the law. In August a case of child labor was opened against a labor brokering farmer in Wesselsbron, Free State province. Seasonal workers including children were made to live in uninhabitable conditions, given rotten meat to eat, and not paid the minimum wage.
Investigations by the Department of Labor and SAPS were ongoing. Farm workers also reported health and sanitation concerns. Women seasonal workers did not have access to bathroom facilities and were forced to use a bush or a secluded spot. Research published in 2010 by the Women on Farms Project NGO found that women farm workers and their children suffered from health problems such as skin rashes, cholinesterase depression, poisoning, harmful effects on the nervous system, and asthma due to pesticides to which women on farms were exposed.
Mining accidents were common. On July 24, four workers died after they were trapped underground at the Tau Lekoa gold mine in Orkney, North West province. On September 19, two miners died when a rock fell on their heads while drilling underground at Impala Platinum mine in Rustenburg, North West province.
The Department of Mineral Resources paid 200,000 rand ($14,300) to each of the families of the three mineworkers whose bodies were not recovered from the Vantage Goldfield’s Lily Mine that collapsed in 2016. It did not pay this amount, however, to the families of trapped workers who were rescued, as promised. Approximately 879 persons lost their jobs when the mine closed in 2016.
Industrial accidents also were common. For example, on March 10, a construction worker sustained serious head injuries when he fell off scaffolding that was approximately six meters high at a construction area in Fourways, Gauteng province. On June 24, a farmworker was critically injured when his leg became caught in a harvester on a farm in Delmas, Mpumalanga province. On April 24, one worker died and three others were injured following an explosion at a cooking oil factory in Robinson, Gauteng province.