Constitutional Hill

January, 2012:

Should we always trust officials who remove children from their parents?

We live in a world in which elites of every stripe (including many journalists, social workers, police officers, politicians and judges) often assume that poor people are dishonest, irresponsible and lacking in the basic ability to care for others – including their children. There is a deeply ingrained assumption amongst many (but, of course, not all) members of the chattering classes that poor people are to blame for their poverty and that they are prone to be less responsible and less worthy of concern and respect than middle class or rich people.

Meaning well, some often endorse interventions by the state that are aimed at “protecting” poor people from themselves (regardless of what their real needs and wishes might be) and protecting the children of poor people from assumed neglect by their parents. Acting on the questionable assumption that state officials will be better placed than parents to determine what is in the best interest of children, they endorse potentially drastic interventions by state officials to “save” or “protect” children from their poverty stricken parents.

In Australia this kind of paternalistic authoritarianism gave rise to the scandal of the Stolen Generations. Between approximately 1869 and 1969 children of Australian Aboriginal and Torres Strait Islander descent were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments, ostensibly to protect the children and enhance their life chances.

In the South African context, how destructive this can be of the basic dignity of the poor is well illustrated by the facts that gave rise to the various judgments handed down by the Constitutional Court yesterday in the case of C and Others v Department of Health and Social Development, Gauteng and Others.

On Friday 13 August 2010, Mr C was repairing shoes on a street corner – as he does every day – but unlike other days he had his daughter with him because his partner (who normally looked after the child) had been hospitalised to give birth to another child. Ms M, a blind person, was accompanied by her two daughters while begging.

On that day designated social workers removed the children from both Mr C and Ms M and placed them in the Department’s care facilities, without notifying the parents of where they were. The social workers (along with other Tshwane officials) were taking part in a well-planned operation involving the removal of children from people found to be begging while accompanied by children. No court order had been sought for the removal of these children.

Section 152(1) of the Children’s Act empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child’s safety and well-being; and (c) removal is the best way to secure the child’s safety and well-being.

In terms of the Act, a social worker is required to compile a report on whether the child is in need of care and protection in terms of section 152 within 90 days, after which the child must be brought before the children’s court for a determination of whether she or he is indeed in need of care and protection. There is no provision for automatic court review before compilation of the report and if parents are unable to appear in court or get help from an NGO to assist them, chances are that their children would permanently be deprived of the care and love of their parents.

In two separate decisions Skweyiya J (Froneman J concurring) and Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring) both agreed, for slightly different reasons, that the provisions of the Children’s Act that authorised this removal of children from their parents without court supervision were in breach of section 28 and section 34 of the Constitution and that this was not justifiable in terms of the limitations clause.

Although a social worker or police official is empowered by the Act to remove a child from his or her parents only if, in their reasonable belief, immediate emergency protection is so necessary that the delay in obtaining a court order may jeopardise the child’s safety and well-being, and then only if the removal of the child is the best way to secure that child’s safety and well-being, the danger is that a social worker or police officer will exercise this discretion on the basis of prejudicial assumptions about poor people and their ability and willingness to look after their children.

As Justice Yacoob emphasised, the purpose of the impugned provisions is to protect, secure and prevent the violation of the constitutional rights of children. One may well ask (if one takes an overtly formalistic view of constitutional interpretation or if one harbours the deeply paternalistic view that state officials will often be better placed that poor citizens to decide what is in the best interest of their children): how can the legislative provisions here in issue that are palpably designed to protect the constitutional rights of children be inconsistent with section 28 of the Constitution?

The answer is simple: there exists always the possibility that a removal would be wrongly made (because of overzealousness on the part of social workers or police officers or because of the prejudices against the poor harboured by many social workers and police officers. As Yacoob  therefore stated:

It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Act] do not provide for this and are therefore constitutionally wanting. Sections 151 and 152 of the Act, though their positive provisions are aimed at the best interests of children, fall short of achieving this result. They carry the potential of being counter-productive because they fail to provide for a Children’s Court automatic review in the presence of the child and the parents. In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).

Having found the provisions unconstitutional, the question remained how to correct this problem. If the sections were merely declared invalid, social workers and police officers would have no power to protect children and remove them from parents (even when this was clearly required) until such time as Parliament had remedied the defect. If the order of invalidity was merely suspended and Parliament provided with one or two years to fix the problem, there would be no guarantee that the sections would not be abused.

The majority therefore endorsed a radical remedy of reading a whole new section into the Act, requiring that a social worker place the removal of children before a Children’s Court for review within 48 hours after the removal and must ensure that the child concerned and the parents, guardian or care-giver as the case may be are, unless this is impracticable, present in court for this review.

Both Skweyiya and Yacoob were at pains to say that this reading in of words into the statute by the court should not be seen as an infringement of the separation of powers doctrine because the court is now writing legislation on behalf of the legislature. As Skweyiya eloquently stated:

By making a final order of this kind, however, I do not suggest that the Court has crowded-out Parliament’s role in further investigating how best to serve the interests of children, for whom a removal from the home is necessary, and in enacting appropriate legislation. Indeed, a final order of reading-in does not give the judiciary the ultimate word on pronouncing on the law. Instead it initiates a conversation between the Legislature and the courts, for Parliament’s legislative power to amend the remedy continues to subsist beyond the granting of the relief, and may be exercised within constitutionally permissible limits at any future time. I would therefore encourage the Legislature to exercise its entitlement to alter the remedy, should it see fit to do so, in view of its specialist expertise and, of course, subject to its constitutional mandate.

For Constitutional Court watchers the minority decision in this case might be of much interest. Although the minority decision was authored by Justice Chris Jafta, it was also supported by Chief Justice Mogoeng Mogoeng. To my mind there are two serious problems with the reasoning of the minority. First, the reasoning is extremely formalistic. There is no purposive interpretation of the provisions of the Bill of Rights at all and the impact or effect of the impugned provisions on the best interest of children is never considered. Second, the assumption underlying the minority judgment seems to be that social workers and police officers will always act in the best interest of the child and that their own prejudices and assumptions about poor people will never cloud their judgment.

Thus Jafta focuses on the text of section 28 of the Constitution and notes that it does not include a requirement that any decision to remove children from their parents should automatically be reviewed. Consequently, he argues, it cannot be used as a constitutional standard for determining the validity of legislation.

In the context of section 28(1)(b) read with section 28(1)(d) and section 28(2), the scope of the right to parental care cannot include parental care that is harmful or detrimental to the safety and well-being of a child. It cannot be claimed that section 28(1)(b) entitles a child to parental care that is harmful to its safety and well-being. It follows that the right to parental care envisaged in section 28(1)(b) is limited to parental care that is beneficial to a child. In other words, this section does not protect harmful parental care. Consequently, legislation which authorises a removal of a child from harmful parental care cannot limit the right in section 28(1)(b).

Completely failing to ask how these provisions would be applied and what impact this might have on the rights of the child to parental care, the minority merely focuses on the wording of section 28 – as if the provisions of the Bill of Rights have not been written in broad and general terms and are not in need of interpretation and amplification by the Constitutional Court – and concludes that these provisions do not prohibit Parliament from empowering officials to remove children from their parents, as long as those officials believe that this is warranted.

The possibilities that state officials will be influenced by anti-poor attitudes and will not always know better than the poor parents (who will be “legally” robbed of their children) what is in the best interest of their children, are never considered. This paternalistic attitude is surprising, to say the least and, to my mind, displays the kind of attitude that is difficult to square with a progressive, pro-poor and pro-transformation vision of the Constitution.

When silence should not be an option

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister – all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

The ANC’s centenary celebrations and internal party democracy

The African National Congress (ANC) celebrated its 100th birthday this weekend with such revolutionary pursuits as a golf day and a prayer service. At the end of a huge mass rally on Sunday Deputy President Kgalema Motlanthe proposed a toast and told the (by then half-empty) stadium that if they did not have champagne, they could take photographs of their leaders drinking, or raise clenched fists. “The leaders will now enjoy the champagne, and of course they do so on your behalf through their lips,” he said.

The ANC has a lot to celebrate and feel proud about (especially about its past), but the quality of its current leaders drinking champagne on that stage (and, directly related to this) the manner in which such leaders are elected, are not part of that which the organanisation can feel proud of. No wonder President Jacob Zuma announced that “the ANC will renew its internal systems and processes in order to prepare and produce new generations of leadership for our country, whose integrity and passion to serve our country is unquestionable”.

The same noises about changes to the internal election procedures of the ANC were made four years ago and nothing came of it, but there is surely an urgent need to address the manner in which party leaders are elected in the ANC – and given recent problems with internal party elections in the Democratic Alliance (DA), also in that political party – to make these processes more democratic and to try and insulate the processes from corruption and the influence of money.

This is important not only for the health of the ANC (and other political parties like the DA) but also for our democracy as a whole. Given the fact that our pure proportional representation electoral system does not allow us to directly elect any public representatives at the national or provincial levels (we can only vote for a party, never for a person), the Mandarins at Shell House might want to consider amendments to the process of electing leaders that would make such elections more transparent and bring them more in line with the democratic values of openness, accountability and transparency set out in the founding provisions of our Constitution.

However, neither the ANC nor the DA had shown an appetite before for developing binding legal rules to force political parties to adhere to minimum standards of internal democracy.  A few years ago when I suggested at an Idasa event that our Parliament should adopt a political party law that regulates the funding of political parties as well as prescribes minimum requirements for internal party democracy for the election of leaders and of representatives to our various legislatures, the then DA Chief Whip, Douglas Gibson, was not amused and accused me of wanting to impose a North Korean style system on South Africa.

Instead of starting to cry like a North Korean, I wrote the following email to Mr Gibson the next day which remains pertinent for this debate:

Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like North Korea”. I thought it might be interesting for you to know that many countries do have party laws, including Germany, Argentina, Mexico, South Korea and as far as I can tell at least 40 others.

In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”

Article 21 of the electoral law further regulates the matter as follows:

“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.

… (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.

 (6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accepting such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.

Your assertion regarding North Korea was therefore slightly off the mark.

These provisions illustrate that legislation may well be adopted in a democracy (especially one with some form of proportional representation electoral system) to set minimum standards and criteria for the election of party representatives in the various legislatures, but leaves it open to each political party to arrange their elections in accordance with their own character and traditions within the confines of these minimum standards. There is nothing that prevents such a law also from applying to the election of party leaders.

Such a law will have little effect, however, if it does not regulate the funding of the internal election campaigns of party leaders and if it does not require transparency in the funding of such campaigns and if it does not prohibit influence buying by large corporations or unscrupolous individuals trying to land huge government tenders.

To this day we do not know who financed Jacob Zuma’s campaign to be elected President of the ANC. Was this campaign funded by thousands of small donations by ANC members eager to see the back of Thabo Mbeki, or was it funded by people like the late Muammar Gaddafi of Libya or by Angola’s President Jose Eduardo dos Santos (as some rumours would have it)? Did Roux Shabangu or other tenderpreneurs contribute to this campaign and was Jacob Zuma beholden to these financiers when he eventually became President? Did the Gupta’s have any role in financing President Zuma and his campaigns and if so, what were they hoping to get out of it?

We simply do not know answers to these questions because there are absolutely no legal rules that bind political parties and potential leaders in those parties to reveal the sources of funding used for either internal leadership campaigns or for political party electoral campaigns in general.

If the ANC is serious about renewing its internal systems of leadership elections and if it wishes to become more democratic and to empower ordinary ANC members to have a more decisive say in leadership elections, it will have to address the influence of money on such elections as a priority and will also open up leadership contests and debates to general scrutiny and debate (as has been suggested by Julius Malema). One way of doing so is by passing a law that prescribes minimum criteria for such elections in the manner similar to that applicable in Germany.

Will the ANC bite the bullet and address this elephant in the room? My guess is that too many people with too much money and power have too much to lose from a change in the rules and from a legally enforced transparent system of leadership and public representative elections. But who knows, maybe the ANC will be overcome with a sudden attack of principle and will do the right thing after all. Or maybe a majority of ANC leaders will not act in a principled way but will nevertheless realsie that opening up leadership elections will weaken the incumbent President and his campaign for a second term and will proceed to do the right thing for the wrong reasons?

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.