State of the World's Minorities and Indigenous Peoples 2016 - South Africa

Events of 2015

In January 2015, South Africa became the 163rd State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) following its ratification of the human rights document. Though the government had signed the instrument 20 years previously, the ratification is a historic and welcome milestone for the country. Nevertheless, South Africa continues to struggle with the legacy of apartheid and profound inequalities in wealth, land ownership and access to public services. Amid stagnant unemployment and poor living conditions for millions of citizens in makeshift housing, levels of violence and gender-based crime have remained high.

South Africa's migrant population, most of whom originate from neighbouring countries such as Lesotho, Mozambique and Zimbabwe, have regularly been targeted in xenophobic attacks. April saw the outbreak of the worst violence since 2008 when a series of killings in Alexandra township, Johannesburg, left seven dead and many others injured. While economic frustrations and poverty contributed to the violence, South Africa's migrants have regularly been scapegoated for the country's problems. A speech the previous month by King Goodwill Zwelithini of the Zulu nation, South Africa's largest ethnic group, in which he allegedly called for foreigners to 'pack their belongings and go back to their countries', was widely blamed in the media for triggering the attacks, though he claimed to have been misquoted.

Popular hostility towards migrants has been mirrored by increasingly severe official policies, reflected in Operation Fiela ('sweep the dirt' in Sesotho), a series of crackdowns carried out in urban communities across South Africa during 2015. While the stated purpose was reportedly to tackle the high crime rate, by September at least 15,000 migrants without documentation – making up the majority of those targeted by police – had been deported. The same month, the deportation of an estimated 2,000 refugees, most of them Angolan, was announced, after their status was revoked, despite many individuals having resided in South Africa for over a decade. Refugees who were granted two-year temporary residence permits now face difficult choices as their permits expire in 2016.

Land rights, long a source of discrimination under colonial and apartheid rule, remain a contested issue for the country's indigenous peoples. During the year, community activists continued to advocate for greater recognition, with almost 100 Khoisan demonstrators protesting before parliament in December to demand that lawmakers reconsider the Traditional Leaders and Khoisan Bill. While the bill was drafted to recognize Khoisan communities and strengthen traditional leadership, it has been condemned by critics as violating customary law and reinforcing restrictive apartheid-era classifications.

Khoisan peoples were dispossessed of much of their ancestral lands during colonial rule, particularly as a result of the 1913 Natives Land Act, which allocated only 7 per cent of arable land to the indigenous populations while prohibiting land sales between geographical divisions of blacks and whites. While the post-apartheid government passed the Restitution of Land Rights Amendment Act to allow descendants of Khoisan communities that were forcibly dispossessed to claim back their lands, the 1913 Natives Land Act was used as the cut-off date for valid claims – yet community members argued that a large portion of their land was forcibly taken before then. Furthermore, the claims period initially closed on 31 December 1998, when many Khoisan communities were still unaware of the process or the deadline to lodge their claims. The claims process was then reopened in 2014 for an additional five years to allow for compensation of claims that were not filed before the 1998 deadline. Claimants now have until 2019 to seek compensation, but many of the claims lodged thus far have been settled monetarily rather than by land restitution. For the Khoisan peoples, of course, financial compensation alone would not address the drastic erosion of their cultures caused by dispossession, given that their cultural and spiritual practices and knowledge are so interconnected with their lands.

In August, Khoi and San leaders within the National Khoisan Council formed their own chamber of commerce and industry to address their socio-economic marginalization and lodge land claims, as they believe they are more likely to be successful if claims are lodged collectively rather than by individuals. Leaders from the council and other minority groups met with ruling African National Congress representatives in Johannesburg in August 2015 to discuss access to education, housing and economic opportunities for their communities, among other issues. Following their meeting, representatives also called for their status as the country's first indigenous community to be reflected in an amended Constitution.

While there has been increasing recognition in recent years of indigenous traditions and customs, the campaign to legalize Muslim marriages still continues. While their status appeared to gain recognition with the publication and circulation of the 2010 Muslim Marriages Bill and the accreditation in 2014 of 100 imams as marriage officers, the bill has yet to be formally passed as law. As a result, Muslim women's land rights after divorce or the death of their spouses remain uncertain. Litigation is still ongoing in the Western Cape High Court to decide whether the failure of South African law to recognize Muslim marriages discriminates against women. Organizations like the Women's Legal Centre (WLC), Lajnatun Nisaa-Il Muslimaat (the Association of Muslim Women of South Africa), and the United Ulama Council of South Africa (UCSA) are interested parties in the case. While the case was originally set to be heard in December 2015, division within the Muslim community caused delays. Notably, UCSA opposes the bill's passing as it believes that any formal state regulation of religious marriages would be unconstitutional. In the meantime, Muslim women remain socially vulnerable and disadvantaged as the common law definition of marriages in South Africa is not extended to include religious Muslim marriages. Muslim couples are considered single and unmarried unless they formally register with a South African court.