THE CONSTITUTION AND HUMAN
RIGHTS AS A FRAMEWORK FOR
PROFESSIONAL PRACTICE
Lecture 9 -11 – Constitution of the Republic of South
Africa
Amanda Manqoyi-Ouamba
CHAPTER 9: STATE INSTITUTIONS SUPPORTING 2
CONSTITUTIONAL DEMOCRACY
1. THE PUBLIC PROTECTOR: to investigate any conduct in
state affairs, or in the public administration in any sphere
of government, that is alleged or suspected to be improper
or to result in any impropriety or prejudice.
2. SOUTH AFRICAN HUMAN RIGHTS COMMISSION:
promote respect for human rights and a culture of human
rights; promote the protection, development and attainment
of human rights; and monitor and assess the observance of
human rights in the Republic.
3. COMMISSION FOR PROMOTION, PROMOTION AND
PROTECTION OF CULTURAL, LINGUISTIC AND RELIGIOUS
COMMUNITIES: to promote and develop peace, friendship,
humanity, tolerance and national unity among cultural,
religious and linguistic communities, on the basis of equality,
CHAPTER 9: STATE INSTITUTIONS SUPPORTING
CONSTITUTIONAL DEMOCRACY 3
4. COMMISSION FOR GENDER EQUALITY: The
Commission for Gender Equality must promote respect for
gender equality and the protection, development and
attainment of gender equality.
5. THE AUDITOR GENERAL: The Auditor-General must
audit and report on the accounts, financial statements
and financial management of—(a) all national and
provincial state departments and administrations; (b) all
municipalities; and (c) any other institution or accounting
entity required by national or provincial legislation to be
audited by the Auditor-General.
6. THE ELECTORAL COMMISSION: manage elections of
national, provincial and municipal legislative bodies in
accordance with national legislation.
7. INDEPENDENT AUTHORITY TO REGULATE
THE CONSTITUTION AND BASIC PROFESSIONAL 4
INTERACTION
Basic professional interaction must be governed:
• We need to use the Constitution and Human Rights as a Framework
for our Professional Practice.
• Every profession is guided by a set of principles and a set of ethics.
• Professional ethics and regulatory boards govern the actions of
professionals such that the work they do is in line with constitutional
values.
• Professional demeanour/professionalism (behaviour, appearance and
communication).
• Managing personal/professional boundaries (in working with
vulnerable groups).
THE CONSTITUTION AND BASIC PROFESSIONAL
INTERACTION 5
• Planning own continuing education and training.
• Use of self/emotional resilience.
• Being an effective practitioner (while also promoting and
protecting personal well-being).
• Promoting and safeguarding the reputation of the
profession.
• Code of Ethics - set of values, ethical principles, and
ethical standards guiding you.
Usually, professionals work with vulnerable groups to enhance their
well-being.
Due to this, they are subject to legal and ethical restrictions.
CODE OF ETHICS 6
• Usually, professionals work with vulnerable groups to
enhance their well-being
• Due to this, they are subject to legal and ethical
restrictions.
• Practitioners need to behave competently and ethically,
and to conduct themselves with integrity.
• Many of the principles and ideals expressed in the
Constitution have been encoded in legislation, some of
which has a direct bearing on professional practice.
HOW DOES THIS LINK TO SOCIAL WORK? 7
• Acts influence the work that social workers do.
• Field dependent
Psychiatric facility = Mental Health Care Act
School = South African Schools Act
University = Higher Education Act
Disability = Policy on Disability
Hospital = National Health Act
Court = Criminal Procedures Act
YOU NEED TO KNOW THE ACTS OF YOUR FIELD!!!
RIGHTS-BASED APPROACH TO SERVICE PROVISION
8
• It calls for existing resources to be shared more equally and assists the
marginalised people in asserting their rights to those resources, thus
making the process explicitly political
- Basic professional interaction entails the provision of services by
professionals to South African citizens.
- Service provision in post-apartheid South Africa is firmly rooted in a
rights-based approach.
• A rights-based approach is likely to give priority to severe or gross
types of rights violations even if these affect only a small number of
vulnerable groups.
• It is a vehicle for increasing the accountability of government
organisations to their citizens and consequently increasing the
likelihood that policy measures will be implemented in practice.
Nyamu-Musembi & Cornwall (2004)
RIGHTS-BASED APPROACH TO SERVICE PROVISION
9
• It also extends the notion of accountability for rights to non-state
actors.
• Rights implies duties, and duties demand accountability.
• Rights-based approach can serve as a means of legitimising a more
progressive, radical approach to development.
• It speaks to participation and empowerment – it speaks to an inclusive
and democratic process of popular involvement in decision-making
over the resources and institutions that affect people’s lives.
• It speaks to assessing the needs of beneficiaries or the choices of
consumers or clients to foster citizens to recognise and claim their
rights and obligation-holders to honour their responsibilities
• To ensure that the services are used in a manner that respects and
fulfils its citizens’ rights.
RIGHTS-BASED APPROACH TO SERVICE PROVISION10
• The goals of the rights-based approach are:
Achieving social justice
A minimum standard of living.
Equitable access and equal opportunity to services and
benefits.
A commitment to meeting the needs of all South Africans
with a special emphasis on the needs of the most
disadvantaged in the society.
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
[Link]
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
12
The Life Esidimeni was a facility that provided highly
specialised chronic psychiatric care to mentally ill
patients.
Population:
+ 2000 mentally ill patients (some with comorbid
conditions e.g disability)
Misconduct:
A rushed execution of the Gauteng Mental
Health Marathon Project
• More than 2000 patients moved to ill-equipped and
unlicenced non-governmental organisations (NGOs)
to curb costs
- R320/a day to R112/a day (a saving of R208/a day)
- Investigation shows that some of the psychiatric
hospitals cost more than Life Esidimeni
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Misconduct cont. 13
- Some NGO facilities were far less expensive but provided
substandard care and lacked certain vital health services
required for patients with psychiatric needs.
- Patients were transported inhumane and degrading manner
e.g. some had their hands and feet tied throughout the move.
- Some suffered trauma as a result of being moved without
their families knowing where they had gone.
- Some transferred without their clinical records and personal
belongings.
- Poor conditions of the NGOs:
1) Overcrowded
2) poor hygiene
3) low-quality or insufficient food
4) a lack of qualified staff
5) a lack of access to medicines and other supplies
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
14
Misconduct cont.
• The moving of these patients was rushed resulting in 144
patients dead and 59 patients unaccounted for.
- Causes of death were unnatural and preventable:
a) Chronic hepatitis
b) Liver failure
c) Pneumonia
d) Uncontrolled seizures
e) Neuroglycopenic brain injury
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Human rights violated: 15
• Rights to health
National Health Act, 2003: Chapter 1 – Responsibility for
Health
Beneficence - putting the interests of the patients first =
preventing harm
Non-maleficence – do no harm e.g do not kill, not cause
unnecessary pain, do not incapacitate others
National Health Act, 2003: Chapter 2 – Rights and Duties
of Users and Health Care Personnel
Emergency treatment – may not refuse a person
emergency medical treatment
User to have full knowledge – benefits, risks, costs and
consequences generally associated with each option
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Human rights violated cont.: 16
Consent of user – if unable to give informed consent e.g.
spouse, parent(s), grandparent, adult child, brother or sister,
court order
- Health service without consent can only be executed with
approval from the head of the provincial department within
48hrs after admission
Participation in decision making – user has a right to
participate in any decision affecting their personal health or
treatment
Discharge reports – a health care provider MUST provide a
user with a discharge report at the time of the discharge the
nature of health service rendered e.g. the prognosis for the
user and the need for follow-up treatment
Confidentiality – all information concerning a user’s health
status, treatment should be kept confidential
- The user MUST consent to the disclosure in writing, court
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Human rights violated cont.: 17
Constitution of The Republic of South Africa No. 108 of 1996
• Rights to life - everyone has a right to life
• Environment – everyone has a right to an environment that is not
harmful to their health or well-being
• Rights to dignity – everyone has inherent dignity and the right to
have their dignity respected and protected
• Equality – everyone should be treated fairly and not be
discriminated against (directly or indirectly) on grounds disability,
conscience etc
• Health care, food, water and social security – everyone has a
right to health care services, sufficient food and water, social security
including if they are unable to support themselves
• Freedom and security of the person – freedom from all forms of
violence, torture, not treated or punished in cruel, inhumane or
degrading way
- Everyone has a right to bodily and psychological integrity e.g. control
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
18
People implicated for the tragedy:
- Dr Tiego Ephraim Selebano (Head of the GDoH)
- Dr Makrabo Manamela (Director, Mental Health)
- Mr Qedani Mahlangu (Former Member of the Executive
Council - MEC)
The health ombudsman report “concluded that the project was
characterized by mismanagement, secrecy, a lack of
accountability and transparency and ulterior motives that
remain unknown, all of which led to the suffering and death of
mental health care users”
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
19
The cost of this negligence:
• Government was ordered to compensate the families of those
who died
- Government had pledged R20 000
- They were ordered to pay R1,2 million (each) including R20
000 they had initially pledged over three months to the
families
- In 2023, the number of claimants had risen to 504 families
but only 405 were approved
- The compensation was split between 50 families and costing
tax-payers and the state 405million
- Government ordered to provide counselling and support
services to all claimants who requested them
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
20
After the inquest:
• Inquest reveals necrotic underbelly of an abusive and broken
public service
• Dr Mahlangu and Dr Manamela were only implicated for 9
deaths out of the 144
•
• On the 11th of July 2024, the National Prosecuting Authority
(NPA) had the sole decision on whether to prosecute following
the judgment
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Improving the accountability role: 21
"The verdict is a small step towards the justice
we’ve been seeking for so long. We are
grateful that those in prominent positions who
were directly responsible for this tragedy are
being held accountable. The victims who
couldn’t help themselves died of dehydration,
starvation and neglect," said managing
director of media at Solidarity Helping Hand,
Rene Roux.
Is accountability sufficient?
CASE STUDY: THE LIFE ESIDIMENI TRAGEDY
Improving the accountability role: 22
• Monitoring and enforcing remedies
- Asking duty-bearers to justify their conduct
- The health ombudsman holds a monitoring role which is
backed by the National Health Amendment Act
- but has limited enforcement and remedial power as these are
still centralised on external sources
- Limited manpower to deal with complaints
• Utilisation of the ombudsman reports for educational
purposes and for advocacy on behalf of health care
consumers.
- A report on the functions and affairs of the ombudsman’ s
activities to be presented to Parliament by the minister of
