Constitutional Hill

January 5th, 2012:

Get up, stand up for your rights!

Most people think,
Great god will come from the skies,
Take away everything
And make everybody feel high.
But if you know what life is worth,
You will look for yours on earth:
And now you see the light,
You stand up for your rights, jah!

Get up, stand up! (jah, jah! )
Stand up for your rights! (oh-hoo! )
Get up, stand up! (get up, stand up! )
Don’t give up the fight! (life is your right! )
Get up, stand up! (so we can’t give up the fight! )
Stand up for your rights! (lord, lord! )
Get up, stand up! (keep on struggling on! )
Don’t give up the fight! (yeah! )

- Bob Marley

The more things change, the more they stay the same. It might be a new year, but we are still talking about the same things we talked about in 2011…. and 2010…. and 2009. One of the things we keep on talking about is the seemingly never ending question of whether the Premier of the Western Cape, Helen Zille, is fatally addicted to Twitter. Another, and somehow related, question we cannot seem to get away from is the question of whether Cape Town is a racist city or not. 

At the end of last year Premier Zille (who has not learnt yet that one cannot have a sensible political argument in 140 characters at a time and whose Tweets often create the impression that she lacks an appreciation of the political sensibilities and the life experiences of the vast majority of South Africans who happen not to be white and upper-middle class like herself) got involved in another spat on Twitter about alleged racism in Cape Town.

In the Mail & Guardian online Verashni Pillay wrote a beautiful piece, in which she responded quite appropriately to this spat. Writing about her time living in Cape Town she remarked:

What drove me slowly mad was how racism was an elephant in the room that you could not talk about. How white Capetonians would cringe and turn away when the topic came up, or look at you in blank confusion and ask why you were so obsessed with race. It was how, yes, there is racism everywhere in South Africa but in Cape Town it is not possible to even discuss it. And how Cape Town, with its pristine beaches, its lofty Parliament buildings and history of activism, was somehow supposed to be better than that.

Yep, my experience exactly. When my former partner was the victim of racial discrimination several years ago and we challenged the discrimination in the Equality Court, many people in Cape Town continued to argue with us that we were being “overtly sensitive” and that what we experienced were not racism at all but “something else”. (What this “something else” might be, was never made clear to me and when several years later I landed up at a party with one of the owners of the club that discriminated against my partner, the co-owner admitted that racial discrimination indeed occurred that night – on the instructions of the club owners.)

But that is not what I want to talk about in this first post of the new year. Instead, I wish to pose a different (and, perhaps, difficult) question: why is it that so many people – even middle class people who are otherwise empowered and confident – complain about experiencing racism and racial discrimination (in Cape Town and elsewhere in South Africa), but seldom challenge this discrimination in the Equality Court?

In the racist world in which we still live in South Africa, fighting to achieve a non-racial society is always going to entail a long-term struggle. If one is never prepared to stick one’s neck out and to take on the racists, the sexists, the homophobes, the ethnic chauvinists, things will never change – or they will not change as fast as they should and as fast as we are entitled to.

Some people seem to think that now that we have achieved our democracy and our freedom, there is no need to struggle against the injustices that still haunt our land. If one experiences racism or racial discrimination in Cape Town, for example, one can just give up on Cape Town and move back to Johannesburg, thus avoiding places where one suspects one will be discriminated against.

Instead of living like truly free and equal citizens who confidently assert their right to be treated with equal dignity and respect on every square centimetre of land in South Africa - whether in Cape Town, in Pofadder or in Polokwane – some people still avoid confronting the racists, the sexists, the homophobes, and never try to force them to change. Some people do not seem to think that one must first get mad and then get even by making these racists pay for their actions, actions which affront the human dignity of others.

This can – theoretically, at least – be done quite easily. The Promotion of Equality and Prevention of Unfair Discrimination Act designates most Magistrates Courts as Equality Courts and one can approach any such court when one believes one has been discriminated against. The clerk of the Equality Court will then assist one to ensure that the case is brought before the Equality Court (in terms of section 20 of the Act).

Although not all clerks of the Equality Court are as well trained as they should be and although it can be difficult to get hold of these clerks (perhaps because they are required to deal with so few cases each year and are assigned other duties), a little prodding and nagging would usually do the trick. One does not need to engage the services of a lawyer in order to win an Equality Court case and the clerk of the court is supposed to assist any claimant to ensure that one’s documents are prepared properly  and papers are served on the alleged discriminator.

The form that must be completed is also available on the internet (see here) and is easy to fill in. The Act also assists the complainant by stating that as long as one has made out a prima facie case of discrimination the onus shifts to the other party who will have to convince the court that no unfair discrimination took place. This is so because discrimination is notoriously difficult to prove as those who discriminate will always have another reason for the different treatment (“there is a private function”, “only members are allowed”, “the flat has already been rented out”, “the dress code was not complied with”, “there is a waiting list for housing opportunities”).

To circumvent this problem one only has to show that a policy, law, rule, practice, condition or situation directly or indirectly imposed burdens, obligations or disadvantage on; or withheld benefits, opportunities or advantages from, a person on one or more of the prohibited grounds, including race, sex, gender, language, ethnicity and sexual orientation.

In other words once one has shown that one was treated differently than others in some way and that one of the differences between oneself and those treated differently was one’s race, sex, gender or sexual orientation, one has provided prima facie proof of discrimination and the discriminator will then have to justify this discrimination by showing that it was not unfair. This will not be easy to do.

And if one wins the case, the Equality Court is given wide powers to make an appropriate order which may include:

  • an order making a settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question; 
  • after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
  • an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
  • an order for the implementation of special measures to address the unfair discrimination; an order directing the reasonable accommodation of a group or class of persons by the respondent; 
  • an order that an unconditional apology be made;
  • an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court: an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person.

Yet, few South Africans ever approach the Equality Courts for assistance. Why there should be such a discrepancy between the large number of acts of discrimination experienced by South Africans, on the one hand, and the number of cases brought to Equality Courts on the other, is difficult to explain.

Can it be that some of us have been so brainwashed by apartheid that we do not all believe that we have a right never, ever, to be discriminated against? Have we been made to accept the fact that discrimination against us will occur and that it is best not to make a fuss and just to “move on”? Are too many of us afraid that the economically and socially dominant racists will brand us as overtly sensitive or as people who are “playing the race card”?

The law does not always serve ordinary people well. Sometime, instead of helping us to achieve justice the law may perpetuate injustice. But the Equality Act is a powerful tool to help every individual in South Africa who has experienced discrimination to reclaim their dignity and to achieve a semblance of justice. It is time that more South Africans stand up for what is right and use this law as it was intended to be used.

My point is that sovereignty itself – and certainly who the ANC elects as leaders and what the party decides vis-a-vis nationalisation of mines and expropriation of land without compensation – will have much less force and effect in determining South Africa’s political and economic future that we might imagine. Economic policy, laws governing ownership and general “good behaviour” around fiscal and monetary policy are rigidly constrained both by the discipline of global capital markets and by a myriad bilateral and multilateral agreements between countries and blocks of countries. As I said to clients earlier this week (concerning the ANC centenary): “Obviously we must continue to watch the ANC as carefully as always in 2012 – but this small open country and economy will continue to be tossed on the currents of the global economy and the various geopolitical, technological, cultural and environmental forces that shape the world. We might miss a trick or two if we lull ourselves into believing the myth that the ANC is a kind of metaphor for the country as a whole. – Nic Borain on his Blog