The Constitution of the Republic of South Africa, adopted in 1996 following the fall of apartheid, is one of the most modern and comprehensive constitutions in the world. Due to the horrors that preceded it, the legal guarantee of equality ‘permeates and defines the very ethos upon which the Constitution is promised.’[1] Equality law in South Africa is more advanced than in many Western countries, with compulsory schemes of affirmative action and a long list of constitutionally protected grounds including; ‘race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’[2] Even in areas of law normally divorced from social factors in most countries, such as competition law, judges in South Africa are compelled to consider the impact on equality.

Despite these lofty ideals South Africa remains one of the most unequal societies in the world. Racism is still alive and kicking, with a recent report by the Institute for Justice and Reconciliation finding that ‘a majority of respondents (61.4%) feel that race relations since 1994 have either stayed the same or deteriorated. Only 35.6% of the sample indicated that they experience no racism in their daily lives.’[3] Women seem to fare no better; a 2009 study released by the Medical Research Council showed that of 1,738 men interviewed, 27.6% had perpetrated the rape of a woman or girl.[4]

How can these two dimensions be reconciled? Why has a legal system so centred on equality changed so little in the last twenty years? This article seeks to provide a snapshot of both the success and flaws of the South African equality law system, in particular on the question of enforcement, demonstrating how little power the Law has when it is not put into practice. This article will consider affirmative action and hate speech as examples, followed by a look at the state of the institutions safeguarding the law.

Legal Structure

Section 9 of the Constitution provides the guarantee of equality. A transitional clause[5] required the passing of further equality legislation within three years of the Constitution’s commencement. Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) merely two days from the given deadline. PEPUDA is the primary act dealing with most types of discrimination, with the exception of inequality in the sphere of employment that falls under the Employment Equity Act (EEA).

Affirmative action

The EEA requires certain employers to engage in schemes of affirmative action, for the sake of inclusion of people from designated vulnerable groups. This is a rather new approach – while many countries around the world authorise affirmative action, few mandate it. To compare, EU law permits affirmative action, but views it more as an exception to the principle of equality, in that it allows for discrimination in a positive sense, rather than as a promoted means to achieve equality.[6]

Nkomo conducted a study of businesses which came under the scope of the EEA, and found that ‘case studies revealed minimal understanding of the importance and value of equality and diversity in organisations. Instead the dominant approach was a compliance-motivated response to the Employment Equity Act. Transformation efforts, for the most part, focused on numerical targets.’[7] She uses this finding to argue that, although affirmative action is needed, the transformation cannot be purely legal. The value of a representative workforce must be taught, not simply imposed.

In the public sector, the problem seems even greater. Louw comments on the case of Naidoo[8], in which the application of an Indian women for a post in the South African Police Service (SAPS) was rejected, on the basis that she was Indian. The shocking aspect of this decision is it was taken under an Employment Equity Plan, a scheme which was created in order to implement the EEA. SAPS had calculated the amount of positions needed for each ethnicity, found that the quota of Indian female positions was 0.1%, and conveniently rounded this down to nought. While the Court found this as unfair discrimination, the very fact that this could occur under enforcement of the mandate of the EEA, as recently as 2013, shows that interpretation of affirmative action under the EEA is flawed, transforming human applicants into numbers. Particularly troubling is the State’s involvement in a situation where it needs to set an example for others. It seems that although the law itself is aimed in the right direction, employers only strive to the fulfil number-based criteria do not appreciate the goal of representation enshrined in the Law. The whole culture of recruitment must be changed and employers educated, in order for the scheme to work its intended purpose.

The Conundrum of Hate Speech

Hate speech is a controversial issue worldwide, as it requires a balancing act between equality and freedom of speech. Because of this balance, nations must choose which value is more fundamental, and different answers are given. In America, where First Amendment freedom of speech is given primacy, hate speech protection is lax.[9] This is due to the underlying philosophy that when all ideas are allowed to be publicly debated and expressed, the right ideas will eventually prevail.[10]

South Africa, on the other hand, comes down firmly on the opposite side of the spectrum. Within the Constitution, hate speech is an express exception to freedom of speech. Section 10 of PEPUDA contains a prohibition which is framed very broadly; speech need only be based on one of the protected grounds, and objectively intended to ‘be hurtful’, in order to be illegal.

There certainly have been some successes under this section. One example is the recent case of Sonke Gender Justice Network v Malema[11], in which Malema, the youth leader of the ruling party African National Congress, responded to accusations of rape directed at Zuma, the President, by commenting that the woman had a “nice time”. The magistrate ordered Malema to make an unconditional public apology within two weeks and pay an amount of 50,000 rand (£4,490) to a centre for abused women, an imaginative remedy central to the approach of South African courts.

This is not to say there are no problems with the enforcement of this provision. One contradictory jurisdictional issue, pointed out by Krüger, is that there is an overlap between PEPUDA and the EEA, in that the EEA is silent on the issue of hate speech in the workplace.[12] As such, many Equality Courts ruling under PEPUDA refuse to accept claims on this issue, given the EEA’s exclusive jurisdiction on labour law. This results in uneven application of the law dependent on where you live in the country – if a person on the street shouts (for example, racial) abuse at you, you can sue them for hate speech; if your boss does the same, you cannot. This unacceptable gap cannot have been intended by Parliament, and must be addressed.

The Equality Courts

The Equality Courts were created under PEPUDA, to rule on all issues of equality law. The primary purpose of the Equality Courts is to allow equal access to the Law, regardless of money, status or education. To ensure this, all proceedings are informal, without need for a lawyer to be present, and trained clerks are there to provide assistance with the case. There is no fee for a case to be brought, unlike most other South African courts.

Yet Kaersvang reports that fewer than 700 Equality Court cases were filed between 2003 and October 2006, and some rural Courts saw no cases brought at all.[13] Furthermore, a study of the Equality Court in Johannesburg between 2003 and 2007 found that of the 34 cases brought during that time, only two judgments were delivered and three matters settled by agreement.[14]

There are a number of reasons for this ineffectiveness. The first is a lack of public awareness; although PEPUDA requires the government to promulgate regulations on promotion of the Courts, it has failed to do so. In fact, inaccurate information as to something as simple as whereabouts is common. The Institute for Democracy in South Africa was able to locate only 43 of the 220 designated Equality Courts when it did a study on the functioning of Equality Courts.[15]

The second is staff training; many clerks receive only two or three hours of training at the beginning of their clerkship. ‘Some are not even aware that they are Equality clerks.’[16] In addition, financial accessibility is in law only; while claimants do not have to pay to bring a claim, respondents, who often have greater resources, hire lawyers to represent them. When a claimant is unaware of the law and is assisted only by a clerk with little training, representation may be a significant advantage.

Finally, Equality Courts do not ‘appear to be used much by the poor and marginalised, but primarily by the wealthy or educated’.[17] Kaersvang gives the example of a case where four white magistrate judges challenged the appointment of two black female judges, on the grounds that they were less qualified than white candidates. The Equality Courts are not functioning for their intended purpose, and in cases such as this they may be detrimental to progress.

The Commissions

To safeguard equality, different institutions have been created, notably the Commission for Gender Equality (CGE) and the Human Rights Commission (HRC). The legal mandate of these institutions is far reaching; they are intended to seek out claimants for whom they can lodge proceedings in court, and as such have wide powers, such as being able to conduct search and seizure operations and inspections. They are also intended to monitor government compliance.

Yet, as we have seen, often the nobility of the law has little reflection in practice. A 2009 report on the functioning of these institutions has the CGE severely criticised as displaying ‘a poor understanding of its legal and constitutional mandate’.[18] The CGE had never assisted anyone in taking a case, reasoning that it ‘has never been approached by prospective litigants’, although it had a duty to seek out those litigants. The powers of search and seizure remained unused, and it had not monitored the government’s commitment to gender equality. Financially, they were also found to be facing issues; ‘the budget process and funding model of the Commission adversely affect its accountability and independence’[19].

The HRC has had more success, with the report describing it as ‘an active and passionate defender of human rights’. It did face similar funding complaints as the CGE, as well as criticism on its lack of focus on rights of children and disabled persons, and the fact that ‘about 50 percent of the requests for information from government departments never receive a response.’[20] However, the message of the report is that the HRC is attempting to fulfil its purpose in the midst of limited resources and outdated legislation, unlike the CGE which has made very little effort to protect women.

Conclusion

This article is not intended as an exhaustive or complete picture of equality law in South Africa; indeed, substantive law has barely been touched upon. However, in each of the sections explored, there is a large gap between the letter of the law and its effect in practice. There is no doubt that the equality law of South Africa has noble goals. We must not forget, however, that law without enforcement is nothing but a written piece of paper. In order to effect societal change, the South African government, the Equality Courts and the Commissions must make efforts to seek out and inform those for whom equality law is intended. Essentially, no matter how well-constructed the law may be, its message must be carried out by the government and society more generally. Until real efforts are made to promote equality on all levels of society, South Africa will not escape the shadow of apartheid.

Jagoda Klimowicz is President of the Law Policy Centre, King’s Think Tank. She is also a 3rd Year Law LLB student at King’s College London.

 

[1] Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC) at [20].

[2] Section 9 of the Constitution of the Republic of South Africa.

[3] Institute for Justice and Reconciliation. “National Reconciliation, Race Relations and Social Inclusion” South African Barometer Briefing Paper 1. 8^th December 2015.

[4] Jewkes R et al: Understanding Men’s Health and The Use of Violence: Interface of Rape and HIV in South Africa Medical Research Council Policy Brief (June 2009).

[5] Item 23(1) of Schedule 6 of the Constitution.

[6] Article 157(4) TFEU. For a full comparison of EU equality law to the law of South Africa, see a report by the European Commission, available at http://ec.europa.eu/justice/discrimination/files/comparative_study_ad_equality_laws_of_us_canada_sa_india_en.pdf .

[7] Nkomo, Stella. “Moving from the letter of the law to the spirit of the law: the challenges of realising the intent of employment equity and affirmative action.” Transformation: Critical Perspectives on Southern Africa 77.1 (2011): 122-135.

[8] Naidoo v Minister of Safety and Security 2013 3 SA 486 (LC); Louw, Andre M. “” I am not a number! I am a free man!” The Employment Equity Act, 1998 (and other myths about the pursuit of” equality”,” equity” and” dignity” in post-apartheid South Africa)(PART 1).” PER: Potchefstroomse Elektroniese Regsblad 18.3 (2015): 594-667.

[9]https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/?utm_term=.dcbd64e1dc5a .

[10] A concept referred to as the marketplace of ideas, founded on the philosophy of Milton and Mill: John Milton, Areopagitica, in Areopagitica and Of Education 1, 50 (Harlan Davidson, Inc. 1951) [1644]; Mill, John Stuart. “On liberty.” A Selection of his Works. Macmillan Education UK, 1966. 1-147.

[11] (2010 (7) BCLR 729 (EqC)) [2010] ZAEQC 2.

[12] Krüger, Rosaan. “Small Steps to Equal Dignity: The Work of the South African Equality Courts.” The Equal Rights Review (2011).

[13] Dana Kaersvang ‘Equality Courts in South Africa: Legal Access for the Poor’ Journal of the International Institute 15.2 (2008).

[14] Krüger, Rosaan. (2011) n11.

[15] Kaersvang (2008) n12.

[16] Ibid.

[17] Parliament of the Republic of South Africa (2007). Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions. A report to the National Assembly of the Parliament of South Africa, Cape Town, South Africa. Available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/070821chap9report_0.pdf

[18] Ibid.

[19] Ibid.

[20] Ibid.