Bodily and psychological integrity are protected in the Bill of Rights

A complaint to the SAHRC by John van den Berg and others has met with a strange and unexpected fate. The complaint is adequately summarized in paragraphs 2, 3 and 4 of the report of the SAHRC on its outcome:

“a) In June 2016, the MEC for Basic Education, Gauteng, investigated allegations of racism at the Koekies and Kalfies Creche in Centurion;

b) The MEC, in numerous social media posts, alleged strongly that the Creche was racist in its apparent treatment of a black child who attended there;

c) The MEC's allegations were based on a picture, disseminated on social media by the mother of the child in question, showing the child sitting separately from white children at a table;

d) The DOG, Mr Tshwete, further posted a picture of a man being beaten, using this as an analogy for what the MEC planned on doing to perceived racists at the Creche;

e) The MEC, in another "tweet", indicated his "disgust" that the main caregivers and children in this Creche were white. You believe this is based on his disgust for the racial group to which these people belong, and not their actions.

f) The allegations of racism at the Creche, it transpired, were inaccurate and the picture in question had been taken out of context. The GDE's investigation of racism at the Creche therefore ended.

3. You are of the view that the above actions of the MEC and DOG constituted "race baiting" and were injurious to the Creche and its staff.

4. The Principal of the Creche furthermore stated in an article on Politicsweb.co.za that the actions of the child's mother have led to her and the Creche receiving numerous threats. The Commission notes however, that the article does not refer to the actions of any official of the Gauteng Department of Basic Education, and appears to lay the blame on the child's mother for misleading the public. However, in your complaint, you do not bring an indictment against the mother of the child and neither will the Commission.”

The SAHRC has concluded that “race baiting” is not a human rights violation and has dismissed the complaint. Mr Van den Berg should be giving serious consideration to an appeal. Here’s why.

It is the primary duty of the SAHRC, constitutionally imposed, to “promote human rights and respect for human rights”. Its investigative work is meant to “secure appropriate redress where human rights have been violated”.

One of the rights guaranteed to all, including those at the crèche concerned, is the right to bodily and psychological integrity. This is expressly set out in Section 12(2) of the Bill of Rights.

Sadly, one searches in vain in the report of the SAHRC for any reference to the violation of Section 12(2). It does not qualify for even a passing mention. Instead, a great deal of ink is spilt on the right to freedom of expression of the functionaries in the education department who were involved in their misguided war on the crèche.

It is surely reasonably foreseeable that the tweets and activism of persons in leadership positions in the state’s department of education would, and did, lead to a backlash as a result of the “race baiting” found to exist, but also found not to be a human rights violation. There is something seriously amiss with the reasoning of the SAHRC.

The complaint squarely states that the actions complained of were injurious to the crèche and its staff. This aspect of the matter is brushed aside as a matter for defamation or crimen injuria proceedings. It is not regarded as a human rights violation at all. The buck is passed to the common law and the criminal justice administration, incorrectly so.

The SAHRC makes no reference to the Rail Commuters Action Group case in which the Constitutional Court regarded the lack of safety and security on commuter trains as a human rights violation due to violations of bodily and psychological integrity perpetrated by gangsters, not by the rail or police authorities who were sued in the matter to take reasonable and accountable steps to secure the safety of commuters. A fortiori, baseless baiting of the public to come down like the proverbial whip-cracking ton of bricks on the crèche, is bound to violate at least the psychological integrity of those so falsely accused of racism in the operations of the crèche.

The fact that the complaint does not squarely and expressly rely on Section 12(2) is not a good reason for the conclusions reached in the SAHRC report. The investigative staff of the SAHRC should know the Bill of Rights intimately. They should, in weighing the complaint that the actions of the MEC and DOG “were injurious to the crèche and its staff”, take proper cognisance of the violation of the psychological integrity of the victims of the so called “race baiting”. The SAHRC should take steps to secure appropriate redress for the violation of the psychological integrity of those who became victims of the baseless attack on the crèche. At the very least, an apology is due. None seems to have been forthcoming.

At the core of the functions of the Chapter Nine Institutions, including the SAHRC, is the need to strengthen constitutional democracy through the support that such institutions can give to those who do not receive the benefits of the new order. Dignity, equality before the law and the right to bodily and psychological integrity are core human rights that the state is obliged to respect, protect, promote and fulfil.

The complaint in the Van den Berg case is against state functionaries who should know better than to falsely and unwarrantedly violate the dignity and psychological integrity of those at the crèche. Such action is clearly in breach of their duty to respect and protect human rights as functionaries of the state.

It is not too late for the MEC and DOG to issue a handsome public apology to the crèche and its staff. Any failure to do so would simply signal malicious intent on their part, irrespective of the factual matrix that appertained in the crèche at the time. It is a poor reflection of the commitment of the MEC and DOG to constitutionalism that no apology has been forthcoming or at least would appear not to have been tendered from the content of the SAHRC report of 2 February 2018.

The SAHRC should also know that justice delayed is justice denied. The complaint was received by the SAHRC on 16 July 2016. Why it should have taken so long to adjudicate it is a mystery that is not dealt with in the content of the report.

One final point: The SAHRC’s reliance on the need for “representivity” in educational institutions is misplaced, dangerously so. It is only the public administration and the judiciary that the Constitution requires should be broadly representative of the South African people. Private institutions are not so obliged. It is also a complete non-sequitur to suggest that black children taught by white teachers are at a disadvantage. Any child taught by bad teachers, whatever their gender, colour or religion is actually at a disadvantage.

No-one is obliged to enrol their toddler at the crèche at the heart of the complaint. Even in the public administration the “representivity” requirement is tempered by the need for “ability, fairness and objectivity” in personnel management practices. Cadre deployment in the public administration is illegal and unconstitutional and has been ruled so since the judgment in Mlokoti v Amathole District Municipality and others, in which no appeal was pursued.

John van den Berg should accept the invitation of the SAHRC to appeal the appallingly bad decision on his complaint.

Paul Hoffman SC is a director of Accountability Now.