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CHR and ICAR Release Comprehensive Study of Business and Human Rights Law and Policy in South Africa

The Centre for Human Rights (CHR) at the University of Pretoria and the International Corporate Accountability Roundtable (ICAR) are pleased to jointly release the  “Shadow” National Baseline Assessment (NBA) of Current Implementation of Business and Human Rights Frameworks in South Africa.

This document represent one of the most exhaustive studies of South African laws, policies, regulations, and standards that pertain to business and human rights at the national level.

CHR and ICAR hope all stakeholders, including South African civil society groups, academia, government representatives, business groups, and investors, will engage with this tool, add to it, and apply it in their efforts to address business-related human rights harms.

For more information, contact Josua Loots, CHR’s Program Manager for Business and Human Rights, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Sara Blackwell, ICAR’s Legal and Policy Coordinator for the Frameworks Program, at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

 



 

Executive Summary

South Africa’s legislative and regulatory framework around business and human rights is relatively well developed, especially in the context of an emerging economy. However, it appears that, in most cases, these laws and regulations are not interpreted as one would expect nor fully implemented and enforced. The country is also at an interesting point in time, where multi-stakeholder discussions and government activities are revolving around legal and policy reforms that impact business and human rights. Some examples include the renegotiation of bilateral investment treaties (BITs), development of a new investment bill, and talks around the development of a new public procurement bill.

At the international level, civil society and the global community at large commend South Africa for ratifying the International Covenant on Economic, Social, and Cultural Rights in 2015, albeit twenty-one years after signing the covenant. However, commitment to several other international and regional instruments is still lacking, including the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

At the same time, South Africa has been quiet on matters involving soft law, especially in the context of business and human rights. While many States have openly expressed support for the UN Guiding Principles on Business and Human Rights (UNGPs), the South African government is currently prioritizing the process around a treaty on business and human rights at the UN level. However, the South African Human Rights Commission (SAHRC) has led several capacity building initiatives that include a focus on the UNGPs. In addition, several multinational companies in South Africa have expressed interest and support for the UNGPs and are building internal capacity around them.

Under South Africa’s domestic legislative framework, several issues require attention in terms of business and human rights impacts:

  • Concerns in the labor sphere revolve around job insecurity, inadequate wages, and poor working conditions, especially in the informal sector. South Africa has also seen a series of protests around outsourcing and the use of “labor brokers,” which is an issue that has been prioritized by the government for legal reform.
  • Land reform remains a controversial topic in the country, due to the legacies of South Africa’s turbulent past and the historically discriminatory dispensation of land. Several laws and regulations that may have implications for human rights are silent on the issue, including, among others, the Companies Act in South Africa. There is thus an urgent need for policy reform that clarifies the human rights responsibilities and accountability of company executives and directors.
  • South Africa is considered to have one of the best tax administrators in the region, and the government is involved in external capacity building initiatives through the South African Revenue Service. However, several concerns remain around the issue of illicit financial flows due to ongoing transfer pricing and other tax avoidance practices in the country.
  • The public procurement system in South Africa is frequently under scrutiny, often facing allegations of corruption and cartel-related incidents. While South African laws provide various guidelines for public procurement practices, there are no prescribed procedures in the law or specific oversight mechanisms.
  • Human rights due diligence requirements and measurements are still lacking across the business spectrum in South Africa, including among State-owned enterprises, which is a segment of the economy that is criticized by the South African media as being rife with corruption and misadministration.
  • In 2013, the South African government unilaterally canceled several of its BITs, mainly with Western European countries. Soon after, discussions started around a new bill that would replace a number of BITs, including those that were cancelled and some that are coming up for renewal. The Protection of Investment Bill, which was passed by the South African Parliament towards the end of 2015, will regulate foreign direct investment going forward. While the human rights implications are still relatively unclear, the bill has been widely criticized for deterring foreign direct investment.
  • South Africa’s business landscape is quite active in the field of corporate governance, perhaps most notably through the efforts put into the development of the King Report on Corporate Governance, which has a prominent focus on human rights.
  • The remedy framework in South Africa consists of a combination of judicial, quasi-judicial, and non-judicial remedies. The court system consists of several levels, with the Constitutional Court at the apex. The SAHRC is one of a few national human rights institutions in the world to have a complaints mechanism and investigative powers. South Africa also houses an active Public Protector that has launched several business and human rights-related investigations around the abuse of public power, misadministration of public funds, and corruption in procurement practices.
  • Barriers to access to remedies that victims of corporate human rights abuse face in South Africa include a number of issues that are not unique to the country. Apart from recurring barriers such as difficulties in piercing the corporate veil and issues around forum non conveniens, victims in South Africa face very high legal costs with relatively little financial aid, which is exacerbated by the “loser pays” principle. South Africa is also known to have a legal environment that is not very conducive to successful class-action lawsuits, which is often the most appropriate filing class in business and human rights-related cases.

During the compilation of this report, it became increasingly clear that there is a dire need for further research into several issues that are linked to business and human rights in South Africa, but have not been explored in-depth by civil society or academia before. Such issues include the link between business and human rights issues and the topics of corruption, public procurement, trade, and investment.

South Africa is home to a vibrant civil society, and the relationship between civil society and government has been relatively constructive, particularly in the field of business and human rights leading up to the treaty negotiations at the UN Human Rights Council. In this regard, we cannot emphasize enough the need for civil society, academia, practitioners, and government to take the information laid out in this document and to develop it further. Bearing in mind the pace at which legislative and regulatory frameworks are changed, it is very possible that some of the information contained in this report will become outdated. We rely on the business and human rights community in South Africa to take it upon themselves to ensure that information around respect for human rights in the conduct of business is well documented, updated, and shared with the public.

Josua Loots
Program Manager, Business and Human Rights Centre for Human Rights, Faculty of Law, University of Pretoria

Sara Blackwell
Legal and Policy Coordinator, Frameworks Program, International Corporate Accountability Roundtable (ICAR)


 

Central Africa consultation on Extractive Industries, Environment and Human Rights, Lubumbashi, DRC

The Centre for Human Rights, in support of the African Commission Working Group on Extractive Industries, Environment, and Human Rights recently hosted a consultation in Lubumbashi, Democratic Republic of Congo (DRC), which focused on the impact of extractive industries on human rights and the environment in Central Africa.

The consultation brought together a range of stakeholders working in the field of extractive industries in the Central Africa sub-region, with a strong representation from the DRC. The consultation took place over the course of three days (13 – 15 July 2015), and included presentations from the participants on issues that included environmental impacts of the extractive industries, community engagement and participation, development and human rights, and the different roles and responsibilities of state and non-state actors.

The Central Africa consultation was the third sub-regional consultation in a series of five sub-regional consultations, that hopes to cover all the sub-regions in Africa. The first consultation focused on Southern Africa, and took place in Johannesburg, South Africa, and the second that focused on East Africa took place in Nairobi, Kenya. The findings and submissions from these consultations will be captured in a report that elaborates on the findings of all the different sub-regional consultations.

 

 


 
The hosting of this consultation was made possible by financial support received from the Australian Department of Foreign Affairs and trade. The fourth sub-regional consultation will focus on and take place in West Africa, though the exact date and time is not yet certain.

Please feel free to send any questions or queries regarding the sub-regional consultations to This e-mail address is being protected from spambots. You need JavaScript enabled to view it . The Working Group also welcomes written submissions for purposes of developing its final findings report on the situation of extractive industries in Africa, and in particular the human rights and environmental impacts.

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Africa consultation on National Action Plans for Business and Human Rights

The Centre for Human Rights (CHR), together with the Centre for Applied Legal Studies (CALS), hosted an Africa regional consultation on National Action Plans (NAPs) for business and human rights. The consultation forms part of a larger project driven by a coalition that consists of CALS, CHR, Singapore Management University (SMU) and other individual experts. The aim of the project is to gather a global South perspective on the content and development process of NAPs for business and human rights. The project was mandated by the UN Working Group on Business and Human Rights (Working Group).

The consultation, which took place at the University of Pretoria, was the second of two scheduled consultations that would feed into an implementation guide on NAPs for business and human rights that is currently being developed by the Working Group. The consultation attracted representatives from international organisations, government, national human rights institutions and the business sectors from 8 African countries.

The programme focused on issues around the development process and content of NAPs, and also asked the participants to identify or highlight pertinent issues within their respective countries that should receive attention by a NAP on business and human rights. The participants also discussed the fundamental question, around what the case for NAPs on business and human rights is in Africa, and whether NAPs could potentially address business and human rights concerns on the continent.

 

 



 

The findings of the consultation will result in a report that, together with the findings from the first consultation held in Bali, Indonesia, will be submitted to the Working Group. The Working Group will then consider using the information to update its implementation guiding document. In an attempt to continue consulting relevant stake holders about NAPs on business and human rights, the coalition also developed an online survey on the topic. All those interested are encouraged to participate in the survey, which may be found at https://www.surveymonkey.com/s/TVP3NX5.

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East Africa consultation on Extractive Industries, Environment and Human Rights, Nairobi, Kenya

The Centre for Human Rights, together with the Institute for Human Rights and Business' office in Kenya, hosted a consultation for East Africa on behalf of the African Commission Working Group on Extractive Industries, Environment and Human Rights violations in Nairobi, Kenya, from 19 - 21 January 2015. The consultation brought together representatives from civil society, national human rights institutions, affected communities and role players from the extractive sector in East Africa for a three day consultation focusing on challenges, best practices and the way forward in the sub-region. The Working Group was represented by Commissioners Pacifique Manirakiza and Lawrence Mute, and Expert Members Clement Voule, Sheila Keetharuth and Eric Kassongo.

The East Africa sub-regional consultation involved several panel presentations focusing on the different country contexts, and included views on Kenya, Uganda, Tanzania, South Sudan, and Rwanda. Thematic issues that were discussed over the course of the sub-regional consultation included the role of national human rights institutions in promoting a human rights based approach to extractive industry governance, the accountability of state and non-state actors with regard to corporate human rights abuse, the experiences of human rights defenders working in the field, experiences of affected communities, benefit sharing practices, and the environmental impacts of extractive industries in East Africa.

 

 



 

The consultation brought together an excellent group of participants, and very insightful and interesting presentations were delivered. The consultation took place in an environment of constructive engagement, and the Working Group managed to engage with the participants throughout the process. The information gathered during the consultation will be contained in a sub-regional consultation report, currently in development and to be published as soon as possible.

It should be noted that invitations were extended to a number of interest groups, and the organisers were disappointed with the lack of participation from governments and the business community. The next sub-regional consultation is scheduled to take place in Lubumbashi, Democratic Republic of Congo, from 6 - 8 July 2015. This consultation will focus on Central Africa, and again hopes to bring together representatives from government, national human rights institutions, civil society, affected communities and the business sector.

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Mining and Agriculture Symposium ‘From resource curse to development driver’, Kampala, Uganda 8 – 10 October 2014

The symposium on mining and agriculture was hosted by the Australian Government in Kampala, Uganda, from 8 – 10 October 2014. The purpose of the symposium was to look at research and other projects on the African continent focusing on issues around mining and agriculture.

All projects included in the symposium are funded by the Australian Government. The Centre for Human Rights received a grant under the Australian Development Research Awards Scheme (ADRAS) in 2012. The collaborative project of the Centre for Human Rights (CHR) and the African Commission Working Group on Extractive Industries, Environment and Human Rights is funded by the ADRAS grant.

Over the course of three days, participants presented the research projects they are working on, explored potential areas for collaboration, and developed project plans and proposals based on existing experiences.

 

Africa Regional Forum on Business and Human Rights, Addis Ababa, Ethiopia 16 – 18 September 2014

The African Union Commission together with the United Nations Office for the High Commissioner for Human Rights convened the first Africa Regional Forum on Business and Human Rights in Addis Ababa, Ethiopia, from. This event followed in the steps of the Annual Forum on Business and Human Rights. The 2014 Annual Forum will be the 3rd one of its kind, and takes place from 1 – 3 December 2014 in Geneva, Switzerland.

The Africa Forum focused on human rights issues that are relevant to the African region, and included stakeholders from government, national human rights institutions, the corporate sector, civil society organisations, and academia. The Centre for Human Rights supported Ms Sheila Keetharuth, an expert member of the Working Group on Extractive Industries, Environment and Human Rights, in her capacity as a representative of the Working Group.

The underlying focus of the conference was the UN Guiding Principles (UNGPs) on Business and Human Rights, which constitutes the basis of the mandate of the UN Working Group on Business and Human Rights. At the conference the African Union Commission (AUC) announced the development of an ‘African framework for implementing the UNGPs’, which should be the first of its kind. The AUC have not issued any further detail, but is expected to work in close collaboration with the African Commission on Human and Peoples’ Rights on this project.

Working Group on Extractive Industries, Environment and Human Rights: Southern Africa Sub-Regional Consultation, Johannesburg, South Africa 29 – 31 August 2014

The African Commission Working Group on Extractive Industries, Environment and Human Rights, with assistance from the Legal Resources Centre (LRC), hosted a sub-regional consultation focusing on Southern Africa from 29 – 31 August 2014. The purpose of the consultation was to bring together stakeholders and representatives from all constituencies involved in the extractive industries sector. The event was attended by representatives from South Africa, Mozambique, Zimbabwe, and Botswana.

Representatives from different Southern African countries gave presentations on the human rights and environmental challenges they face within their respective lines of work. Some of the substantive issues that were discussed at the Consultation included land rights, mining law and policy, the environmental impact assessment procedures and frameworks, and the different roles and responsibilities of government, private actors, civil society, and affected community members.

The findings of the sub-regional consultations will be captured in a report, and made public by the Working Group.

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