Equality an institution in the eyes of SA law

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Professor Frans Viljoen

On Human Rights Day, annually, South Africans reflect on the route we have travelled away from a past epitomised by the shooting at Sharpeville in 1960 of protesters advocating the end of racist policies.

These events played a pivotal role in cementing international consensus to adopt a UN treaty prohibiting racial discrimination. This treaty, the Convention on the Elimination of all Forms of Racial Discrimination (Cerd), for the first time established an international body of independent experts to oversee state compliance with human rights.

Cerd became the standard for subsequent UN human rights treaties.

Since 1966, when Cerd was adopted, March 21 is also commemorated as International Day of the Elimination of Racial Discrimination.

The constitution underlines the importance not only of non-racialism, but also non-sexism, equality and non-discrimination on the grounds of sexual orientation in the post-apartheid era.

Section 9, in particular, stipulates that not only the state, but also no “person” (that is, an individual such as your neighbour or landlord), or a non-state entity (such as a church, club or company) may unfairly discriminate against anyone.

Our constitution differs from most others in that it clearly requires adherence to equality at the vertical level (between the state and individuals) and at the horizontal level (between individuals).

While the state can relatively easily regulate the vertical relationship, the elimination of inequality at the horizontal level is much trickier.

For this reason, the constitution required a law to be adopted to further address inter-personal inequalities, including racially-based actions and language by one individual or non-state entity to another.

This law is the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. Under this act, new courts, called “equality courts”, have been set up. These courts are supposed to be much more accessible, because lawyers are not required, and should be less formal and less intimidating to ordinary people.

These courts are not separate from the ordinary courts: every high court sits as an equality court when the need arises, and 382 magistrates’ courts have been designated to act as equality courts.

The rationale behind this act that any person who feels aggrieved about an incident of discrimination or language that could be categorised as “hate speech”, should be able to easily access any of these equality courts, and obtain a suitable remedy without paying for a lawyer or waiting for too long.

One may, therefore, rightly think of the equality courts as important institutions to ensure that progress is made towards eradicating inequality and unfair discrimination.

Unfortunately, the impact of the Equality Act and the equality courts in ensuring accountability for racial and other forms of discrimination, and in fostering a culture of substantive equality has been minimal.

This state of affairs may be ascribed to five reasons.

To start with, the Equality Act was only adopted in February 2000, meeting by only a few days the deadline for its adoption within three years of the entry into force of the constitution (which took place on February 2, 2007).

Second, the act only started operating on June 16, 2003, (more than three years after its adoption, and more than six years after the constitution, with its lofty promises, had entered into force).

Third, equality courts at magistrate’s courts level can only operate if there are magistrates and clerks in place who have been trained as prescribed under the act. It is unclear how many of these magistrates have undergone training, and what continuous training is in place. The formal designation of 387 equality courts (out of a total of just more than 700 magistrate’s courts) was only done in 2009.

Fourth, the act is divided into two parts: the “reactive” part, which allows for complaints in response to discrimination; and the “proactive” part, which talks to promotional measures to ensure greater equality. To date, the promotional part of the act is still to be made effective.

Fifth, the act provides for continuous review, among others, to allow factors such as HIV status, nationality and poverty to be given more importance within the scheme of the act. However, the review process has been faltering and has not resulted in any serious reconsideration of these grounds. At the moment, the review process seems to have stalled. According to the Department of Justice website, three of the seven positions of the review committee are vacant.

The effect of these defects in the implementation and operation of the act and in the functioning of the equality courts has been that only a small number of cases has ever been submitted to equality courts. The number of cases decided is even smaller.

Although the data is now outdated, research has, for example, shown that between June 16, 2003, and the end of 2007, 37 cases were submitted to the Pretoria Equality Court, and that no case was decided; for Joburg the figures were 34 cases, with two judgments (Rosaan Krüger, – 2011 – Equal Rights Review).

There are many reasons why there have been so few cases, among them: a lack of publicity about the existence of these courts, a lack of awareness-raising efforts by the government and other relevant actors, a lack of systematic reporting of decided cases, and the much greater formality and presence of lawyers in the process than had originally been foreseen.

As we celebrate Human Rights Day, and the advances towards greater equality in our society, we should also commit to make the one institution which is singularly devoted to enhancing equality, as embodied by the equality courts, more of a national priority.

We owe it to the history to which it responds, to make this a more meaningful institution.

l Professor Frans Viljoen is the Director for the Centre for Human Rights, Faculty of Law, University of Pretoria.