Speeches

Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the 5th Social Justice Summit, with the theme “The Role of Business and Civil Society in Advancing Social Justice” held at the Artscape Theatre Centre, Cape Town, 12 October 2023

Programme Director and Chairperson of the Summit,
Director and Chairperson of the Centre for Social Justice at Stellenbosch University, Professor Thuli Madonsela,
The Vice-Chancellor and Rector of Stellenbosch University, Prof Wim de Villiers,
Distinguished guests and friends,

 

This week is of particular significance when one looks at the history of our country. This past Monday – on the 9th of October – 70 years ago, in 1953, the Reservation of Separate Amenities Act, Act No 49 of 1953, came into operation.

The Act provided that there should be separate amenities for different racial groups and enforced segregation of all public facilities, including buildings, services and transport, in order to limit contact between the different races in South Africa.

The Act also stated that the facilities for different races did not need to be equal, with the best facilities being reserved for white people. The Act institutionalized and legalized racial segregation and formed part of apartheid laws which would impact on every and every aspect of people’s daily lives.

And because different races were physically separated, it denied social contact between races.

This coming Sunday, the 15th, it will be 33 years since that Act finally ceased to exist by way of the commencement of the Discriminatory Legislation regarding Public Amenities Repeal Act in October 1990.

The Reservation of Separate Amenities Act has been repealed, but we still live with its legacy today.

We still see the remnants of the legislation when we look around us, in apartheid spatial planning, in differences in infrastructure development. We see disparities in terms of income and in land ownership.

There are still differences in educational attainment. The Census 2022 figures which were released on Tuesday acknowledges that South Africa has geared up to intensify its measures through policy reforms to tackle school dropouts and increase completion of secondary schooling.

Post-apartheid South Africa has experienced an expansion in the completion of secondary schooling for previously disadvantaged population groups. However, race disparity in educational attainment intersects with other forms of disadvantage, including poverty and the urban-rural divide.

Poverty remains one of the biggest consequences of our separate and unequal past.

Statistics SA recently determined the food poverty line at R760 per person per month (in May 2023 prices). This refers to the amount of money that an individual will need to afford the minimum required daily energy intake. This is also commonly referred to as the “extreme” poverty line.

Last month the World Bank remarked that, in South Africa, structural challenges and weak growth have undermined progress in reducing poverty, further heightened by the COVID-19 pandemic and that the achievement of progress in household welfare is severely constrained by rising unemployment – with the unemployment rate being the highest (61%) among youths aged between 15 and 24.

But the following paragraph is perhaps most telling. It states that, and I quote,

“South Africa remains a dual economy with one of the highest and most persistent inequality rates in the world, with a consumption expenditure Gini coefficient of 0.67 in 2018. 

High inequality is perpetuated by a legacy of exclusion and the nature of economic growth, which is not pro-poor and does not generate sufficient jobs. Inequality in wealth is even higher, and intergenerational mobility is low, meaning inequalities are passed down from generation to generation with little change over time.”

If one looks at poverty and inequality on a global scale, it become evident that these challenges are not unique to South Africa.  

The United Nations recently remarked that poverty and inequalities within and among countries are on the rise in many parts of the world. The UN further notes that the economic and social crises of recent years have been exacerbated by the consequences of the COVID-19 pandemic, natural disasters due to accelerating climate change, geopolitical tensions and armed conflicts.

And, most importantly, that UN states that beyond the human tragedies associated with them and their impact on the world of work, “these crises have highlighted the interlinkages and dependencies of economies and societies around the world and shown the crucial need for concerted action to respond to them, at global, regional and national levels.”

So, in short, we are all in it together.

But if we are all being in together, it means that we are able to find solutions together.

And that is where social justice comes into the picture.

Many people will argue that social justice and human rights are one and the same thing, but they’re not - social justice and human rights are related, yet distinct, concepts.

While human rights are universal rights that people have because they are human, such as the right to life, human dignity, equality and non-discrimination, social justice is the concept which demands that everyone deserves equal and fair economic, political and social rights and opportunities.

One way to understand the difference between social justice and human rights is to look at their scope and focus. Human rights are universal, whilst social justice is more context-specific.

Human rights focus on the minimum standards that every person should enjoy, while social justice aims for a more equitable distribution of resources and opportunities among different groups.

Another way to understand the difference between social justice and human rights is to look at their relationship to power.  Human rights challenge the abuse of power by authorities, while social justice challenges the structural inequalities that create and maintain power imbalances.

Social justice can be argued to be wider than human rights, as it also encompasses issues within society such as access to opportunities and participation.

I would argue that in South Africa our concept of human rights is closer to the concept of social justice, mainly because of the inclusion of justiciable socio-economic rights in our Constitution – as opposed to other jurisdictions which may limit human rights to the more traditional and so-called “first generation” civil and political rights.

Social justice can be seen as a means to realize human rights, while human rights can be seen as a framework to guide social justice.  Similarly, social justice can enhance the enjoyment of human rights, as it addresses the root causes of discrimination, poverty and violence that violate human rights.

Therefore, social justice and human rights are both important values and goals for a fair and inclusive society.

They can inform and inspire each other, as well as challenge and critique each other.  They can also work together to create a more just and humane world for everyone.

So what role can business and civil society play in the attainment of social justice? In the case of civil society, the answer is much easier to define – we live in country with a vibrant and active civil society.

Civil society activists, NGOs and public interest law firms have brought much needed change, for example, many of the socio-economic rights we enjoy today are as a result of civil society approaching our courts to ensure the enforcement of these rights. These judgments have, in turn, led to the amendment of laws and policies to give effect to such rights.

But civil society are indeed faced with challenges of their own – funding often being the most crucial.

And what about business?  Business has a responsibility to meaningfully invest toward social justice as it ultimately leads to inclusivity and economic justice.

So what is expected of the business sector?  A lot has been written about business and human rights, for example the UN Guiding Principles of Business and Human Rights says that states must protect against human rights abuses by third parties, including business enterprises.  This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication, whilst business enterprises should respect human rights.

This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved. The responsibility exists over and above compliance with national laws and regulations protecting human rights.
Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.

In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including:

• A policy commitment to meet their responsibility to respect human rights;
• A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights, and
• Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.

In 2014 the UN Human Rights Council in Geneva adopted a resolution drafted by Ecuador and South Africa and an intergovernmental working group (IGWG) was established with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights. The aim is to translate companies’ international legal obligations into a treaty.

In a statement made by South Africa in 2015 it says that great strides have been made in the adoption of the Guiding Principles on Business and Human Rights and elaboration of an international Convention would thus be a logical extension and advancement of this process. In this context, we firmly believe, that a shift of understanding is needed for corporate responsibility to be human rights law rather than merely a societal expectation.

An updated draft was published in July 2023 and will be considered at the IGWG 9th session taking place later this month in Geneva.

Interestingly, some legal commentators have noted how the language on corporate obligations has changed and how states’ positions differ. Some are calling for a strong treaty, whilst others want to limit companies’ obligations to domestic law only. Some have called for the term “obligations of transnational corporations and other business enterprises” whilst others prefer the term “responsibilities of business enterprises” and it has been argued by some that the amended wording is weaker.

The irony, however, is that it seems that clients and consumers are, in fact, requiring more from businesses when it comes to social justice - and not less.

An article which appeared in the Harvard Business Review argued, correctly in my view, that consumers are now looking for more than Corporate Social Responsibility (CSR) — they’re looking for what the article coins “Corporate Social Justice”.

Where CSR is often realized through a specific secondary program which is taken on additional to a company’s main business, Corporate Social Justice requires what the article calls “deep integration with every aspect of the way a company functions.” In other words, shifting the focus from running to CSR projects, to actually building a complete social justice culture within a company.

And some will probably think that, since I’m quoting from a Harvard Business Review, this is all fine and well for developed countries to have all sorts of projects, but that developing countries simply can’t afford “nice-to-have” social projects or it’s not realistic or it doesn’t apply to us.

But it does. Closer to home, we have King IV – or as we know it by its full title, The King IV Report on Corporate Governance for South Africa – which is a report that provides guidelines and principles for corporate governance in South Africa.

One of the underpinning philosophies of King IV is seeing the organisation as an integral part of society – organisations operate in a societal context, which they affect and by which they are affected.

The Report explains this beautifully by stating that, and I quote,

“This idea of interdependency between organisations and society is supported by the African concept of Ubuntu or Botho, captured by the expressions uMuntu ngumuntu ngabantu and Motho ke motho ka batho – I am because you are; you are because we are. Ubuntu and Botho imply that there should be a common purpose to all human endeavours (including corporate endeavours) which is based on service to humanity.

As a logical consequence of this interdependency, one person benefits by serving another.

This is also true for a juristic person, which benefits itself by serving its own society of internal and external stakeholders, as well as the broader society.”

This is echoed in our Companies Act of 2008 where it states that the purposes of this Act are, amongst others, to promote compliance with the Bill of Rights as provided for in the Constitution in the application of company law and to reaffirm the concept of the company as a means of achieving economic and social benefits. It also calls for the creation and use of companies, in a manner that enhances the economic welfare of South Africa as a partner within the global economy.

In short, businesses cannot operate in isolation from the societal circumstances around them, they have to drive a social justice and human rights agenda.

And at the very heart of developing such a social justice agenda, lies the recognition of our shared humanity and an acknowledgment that ultimately, as human beings, other people have the same needs as we have.

Why would we deny other people the very same things which we want for ourselves?

When I think of our shared humanity, I often think of the works of poet and social activist, Langston Hughes, and I want to close with a few lines from one of his poems called Freedom.  It reads -

“I tire so of hearing people say,
Let things take their course.
Tomorrow is another day.
I do not need my freedom when I’m dead.
I cannot live on tomorrow’s bread.
Freedom
Is a strong seed
Planted
In a great need.
I live here, too.
I want my freedom
Just as you.”   

Thank you.