By Tamsin Metelerkamp

Speaking at the Human Rights and Constitutional Accountability Conference hosted by the Stellenbosch University Law Faculty on Thursday, 28 November, Advocate Adila Hassim emphasised that for accountability to be truly effective, it must be felt at an individual level.

“The core message of my address to you this morning is that there can be no transformation without accountability… I suggest to you that we have moved from the soft notions of accountability that emerged in the halcyon days of the late ’90s constitutionalism to a sharper articulation of what accountability requires, and from whom.”

These were the words of Advocate Adila Hassim, senior counsel at Thulamela Chambers and a renowned human rights lawyer, who was speaking at the Human Rights and Constitutional Accountability Conference, hosted by the Stellenbosch University Law Faculty on 28 and 29 November. The event marked 30 years of constitutional democracy in South Africa.

Hassim advocated for strengthening the call for individual accountability of public office bearers. She noted that the power assigned to the government didn’t belong to the individuals who occupied positions, but rather resided in the state for the common good.

“For accountability to be truly effective, it must be felt at an individual level… Individual accountability can range from remorse to criminal conviction – what is appropriate will depend on context. At times, an apology or a confession goes a long way in recognising the harm done and effecting course correction. Sometimes, sorry is not enough,” she said.

Hassim referred to the court processes surrounding the Life Esidimeni tragedy as an example of seeking accountability from individual public office bearers.

This tragedy saw the deaths of 144 mental healthcare users after they were moved from a highly specialised, long-term psychiatric care hospital to an ill-equipped and unlicensed NGOs and community care facilities. The Gauteng Department of Health’s decision to close Life Esidimeni in 2015 went ahead despite strong opposition from experts and civil society organisations.

Hassim was lead counsel of the Life Esidimeni arbitration and inquest, which sought justice for the mental healthcare users and families affected by the closure. She described the incident as “one of the lowest moments in the 30 years of our Constitution”.

“In September 2019, the acting Director of Public Prosecutions decided that a formal inquest into all the deaths be held in the North Gauteng High Court,” Hassim said, adding that the process ran for 130 court days over two years and involved 40 witnesses.

In July 2024, Judge Mmonoa Teffo ruled that the  former Gauteng health MEC, Qedani Mahlangu, and former director of mental health in Gauteng, Dr Makgabo Manamela, could be found criminally responsible for the deaths of nine Life Esidimeni patients. While it is not a definitive finding of criminal accountability, the docket is now with the National Prosecuting Authority for further investigation.

Hassim spoke of section 195 of the Constitution, which states that public administration must be governed by the democratic values and principles enshrined in the Constitution, including transparency and accountability. The section has been directly invoked in at least 120 judgments between the high court and the Constitutional Court, she noted.

“I suggest to you that the legal culture of accountability within its conservative bounds has gone further than we would have expected 30 years ago, but in almost inverse proportion, political culture has failed to live up to a constitutionalised code of political governance,” Hassim said.

“The repeated invocation of section 195 by the courts is a way of communicating to the other levers of state to step up their implementation of the principles contained in that provision.”

Culture of accountability

Professor Sandra Liebenberg, the HF Oppenheimer chair in Human Rights Law at Stellenbosch University’s Faculty of Law, said there is a need for a form of accountability that not only reacts to human rights violations once they have occurred, but also proactively induces rights-friendly governance and budgeting processes.

She told Daily Maverick this would involve embedding training and education on how to prevent human rights violations in the standards of key professions, such as lawyers and public servants.

“Those processes that go with human rights – so participation, respect for dignity, non-discrimination – are not just a fluffy thing but should actually be part of the key performance indicators of a [government] department, which they can be held to account for,” Liebenberg said.

“It’s not just something for courts. The Constitution is addressed to the whole of government and the whole of society.”

Liebenberg spoke of the need to build up community organisations and equip them to hold the government to account.

“I think if I had to have one message, [it’s that] we need more participatory spaces at all levels and in all institutions. I think whenever something’s top-down, there’s inherent resistance to implementing it,” she said.

The Stellenbosch University human rights conference saw emerging scholars and human rights experts coming together to present papers on accountability related to a range of South African sectors and institutions, including public schools, state-owned enterprises, rural fishing communities, chapter 9 institutions and the Department of Home Affairs. DM