Despite being state-owned, Hartbeespoort Dam shoreline in the North West province remains one of the microcosms of discrimination against black people, as it is one of the areas where indigenous people are made to feel unwelcome and inferior.  

This was a view of the South African Human Rights Commission (SAHRC) commissioner, Professor Tshepo Madlingozi, who on Wednesday delivered a report that investigated the discrimination that is taking place with land allocations at the world-class tourism destination, situated in the Madibeng Municipality.

The commission launched its investigation into the unfair treatment of black people after Mmeli Mdluli had complained on behalf of the Hartbeespoort Dam Development Initiative. 

Mdluli had complained about the dam’s white residents unfairly discriminating against black people by denying them permission to occupy (PTO) the dam’s shoreline.

The commission blamed the Department of Water and Sanitation (DWS) for ignoring and encouraging discrimination against black people. It also found that women in general were also discriminated against when they applied for the PTOs, which favoured mostly white males.

This was while white male residents were ran businesses without having PTOs. 

It found that the DWS violated Section 9 of the Constitution by failing to promote equality and prevent unfair discrimination. 

“Let me be very clear, unfair discrimination is not only due to commission (as) the court has been very clear that unfair discrimination also exists where there is omission,” he said.

He said the department had violated the Constitution by failing to provide redress for those who are historically disadvantaged. 

“This is the sense that we got in our engagement with black complainants, that ‘it is not only an economic issue, but is about dignity’, ‘we feel humiliated, marginalised and unseen,” he said.

He found that the admitted policy violated Section 33 of the Constitution, which is the right to just administrative action by revoking black people’s PTOs without proper due process.

He also said the Madibeng Municipality contributed to racial tension, leading to the weaponisation of the noise pollution bylaws. 

During the investigation, black residents told the SAHRC of the historical and ongoing racial exclusion, which included a pattern of rejection and delay in processing PTO applications.

Black people also complained that police were using bylaws against them under the guise of fighting noise pollution. 

White residents denied that they were being systematically racist against black people and instead accused the Madibeng Municipality’s security officers of failing to control noise.

Madlingozi said the DWS confirmed that there was discrimination in the occupancy of the dam’s shoreline by saying it was a historical problem dating back to the pre-democratic dispensation.

He said the department also conceded there were administrative weaknesses, which included missing historical lease records, and that it could not account for some of the current occupiers.

“It was confirmed that 16 of the entities were occupying state land without leases or PTOs. 

“Of these entities, three are white male-owned, two are white female-owned, two are black male-owned, one is black female-owned, and eight (others owned by) people of different races and genders,” said Madlingozi.

He said mixed-race entities meant they are meant to be co-owned by people of different races. 

He said the department used the excuse of job creation as the reason for discrimination in the unequal ownership of the entities, which he said left a clear assumption about the black-owned enterprises, which “I don’t need to explain”.

He said PTOs were revoked without affording their black holders an opportunity to be heard, which he said was against the principle of natural justice.

Police had denied to the commission the allegations of bias and failure to investigate all racism cases, without explanation.

They also told the commission that some cases were still under investigation and not yet enrolled with the National Prosecuting Authority (NPA), while others could not be enrolled because of the lack of evidence for prosecution.

However, he said there was one white resident who was successfully prosecuted for pointing a firearm at black residents. 

He said the Madibeng Municipality conceded there was poor enforcement capacity and poor leadership, and instability in the municipality.

“Although the municipality made some commitments, including that they would conduct a land audit, enact and gazette the bylaws, and boost enforcement capacity, the municipality, at the time of writing the report, had not provided those updates.

“They did not honour their undertakings,” said Madlingozi.

The SAHRC found that the department had, over many years, failed to redress racial and gender disparities in providing lease agreements.

He ordered that the DWS must finalise and adopt the lease policy and regulations within 180 days and submit them to the commission.

 “The department must adopt a clear transformation plan.

“The department must review all the PTOs that were revoked and reinstate them where appropriate, and they must allow affected persons to make representations,” he said. 

He gave the department 90 days to audit the occupants of the dam’s shoreline. 

 bongani.hans@inl.co.za

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