When elections come around or when it is in trouble for doing something really stupid (like getting involved in an R80 billion corrupt arms deal) the ANC and its government Ministers are fond of reminding us of our dark apartheid past and the horrific racism and discrimination still suffered by many in our society.
You see, as long as people can be reminded of the suffering they have experienced because of racism and discrimination, the ANC can retain some of its credibility as the most prominent liberation movement which have helped – along with the millions of ordinary citizens who had not gone into excile but had fought against the apartheid state in the streets of South Africa – to liberate us from apartheid.
Is that why the ANC-led government has invested so little time, money and effort into making a success of the Equality Courts specifically designed to provide and easy legal avenue for people to address the lingering racism and discrimination in our society? Does it need racism and discrimination to retain its legitimacy and its power? Racism and discrimination remains a fact of life for many South Africans, but strangely the ANC government seems less enthusiastic about addressing the problem than in reminding us about it during elections.
This (rather cynical) thought came to me when I read in the Cape Times that equality courts were underused and that some were shutting down because citizens do not bother to report cases of discrimination. The report points out that in the past six years, 100 equality courts have been closed. And it says the Human Rights Commission’s deputy chairperson, Zonke Majodina, warned MPs yesterday that more of these courts faced closure in the near future as communities failed to use them. According to the report, the commission blamed a lack of information as a reason for the community’s seeming lack of interest
Equality Courts are supposed to provide an easy and cheap way for citizens to challenge discrimination on the basis of race, sex, gender, sexual orientation, HIV status and any number of other grounds. Equality court clerks are supposed to be well trained and to assist complainants to bring cases to court, thus making it unnecessary to engage the services of lawyers. Such courts have wide powers to order culprits to apologise or to pay money to the victims of the discrimination.
However, from personal experience I know that it is rather difficult to bring a case to the equality court. Trying to find an equality court clerk and the necessary forms can take days of hard work. I had to phone around and search the Internet to get access to the information. Even then, the process that will be followed is not always explained to people and although it is supposed to be an informal one, the formalistic legal training of many of those involved places barriers before a litigant that can seem daunting.
I was involved (with a previous partner) in one of the first equality court cases and we felt thoroughly intimidated by the process. If we had not managed (because of my knowledge and contacts) to get the Human Rights Commission involved in the case, we might well have given up. In the end we won that case, but how many other people with less or no formal education are going to manage to push on when they are confronted with unhelpful officials who often lack the basic knowledge of the prescribed procedures and do not have the empathy and wisdom to treat victims with care?
The Act is heavily stacked in favour of the litigant as one only has to show that one has been treated differently than others and that the others who were treated differently are from a differnt race, sex, gender, HIV status, sexual orientation or some other ground. It is then assumed that one has been unfairly discriminated against and the defendent must prove that the different treatment did not amount to discrimination – something that is very difficult to do in the absence of clearly set out objective policies.
Yet few people make use of this very powerful weapon against discrimination. It seems to me this is not only because people are not aware of their rights, but also because the system itself is not user friendly and makes it difficult for people to engage with if they do not have access to lawyers. The problem is not the legislation. Although the legislation is not a model of clarity, it does aim to provide for a user friendly process, but this does not happen because the system as a whole is somewhat dysfunctional.
Perhaps this is only a manifestation of a larger problem relating the administration of justice. Where the system is people unfriendly, chaotic and formalistic, ordinary people who try to vindicate their rights will obviously feel disempowered and might well become despondent about trying to address the discrimination they had suffered.
This is made worse, however, because people who are discriminated against often feel embarrassed and traumatised by the event and sometimes wonder whether they are not to blame in some way for what had happened to them. Prejudice is a terrible thing and can often induce shame in its victims – even when they are clearly not to blame.
A government that is serious about tackling discrimnination will pump far more human and financial resources into equality courts, will run a major education campaign for the public and the officials involved and will adequately fund an institution like the Human Rights Commission to assist potential litigants so that racism can be vigorously attacked and rotted out. This has not happened. Why not? It seems to me to be an outrage against every victim of discrimination.
So during the next election when I hear a politician talking about the evils of apartheid and the horrors of discrimination I am going to feel rather bitter and cynical as I wil suspect that the said politician is using the suffering of others (which his or her party could have addressed but have not) in order to win votes. Who cares about the suffering of ordinary people when there are Mercedes Benzes with blue lights to drive, cocktail parties to attend and oversees “fact finding” missions to go to?
Prof, a well written blog.
Equality in SA is but a mere myth. As a gay man I have had many encounters of discrimination especially in small rural Free State towns. Being told you cannot enter a bar with your boyfriend because you’re a “moffie” stings a little…
Section 9 (4) of our constitution is something I have yet to see in practice when it comes to sexual orientation.
If I may ask, would it be possible to perhaps provide some information how one is supposed to approach the equality courts? Perhaps a firsthand account?
George, see http://www.capegateway.gov.za/eng/directories/services/11458/94929 for some information.
Prof, i have before suggested that the style of the CCMA should be adopted to a wider range of our courts. As you know their forms are easily available etc. I will again suggset that the CCMA model be applied here in the efforts of making the Equality Courts accessible.
I remember reading about Prof’s partner (in 2003) being denied entry into some place in Somerset West, if I remember correctly. In that case it was not because of sexual orientation but race masked as inappropriate attire. This happens far more often than one cares to imagine. I’ve refused to go to a club that has discriminatory policies. The problem really is that people don’t know their legal options and if they do, its too much effort to actually go through with it.
I guess the ANC can continue to claim that it fought for our (and my) rights to equality. But thius is an empty claim. They should fight for the rights of those who are different to them as well, such as homosexuals and the disabled.
thats rather ironic…
http://www.news24.com/Content/SouthAfrica/News/1059/9d0498cefb814692853dacb597c28e26/09-07-2009%2010-07/Malema_at_equality_court
im sure Malema will make sure the equality courts stay in business
Prof, am disappointed to hear that Equality Courts are closing down and are not used efficiently. I am not surprised by the low usage. Imagine how the usage would be if unfair discrimination and other constitutional rights in the labour sector went through the Equality Courts. Labour sector is where inequality have most terrible impact and can easily be reversed if it was easier and cheaper to litigate on.
I, for one, am not surprized at all. You see, the whole idea of creating so-called “Equality Courts” and “Courts that may decide matters under PAJA” (which, have not yet seen the light of day, mind you!) is again a forced meddlingt with the courts’ independence. “Equality Courts” (existing judges and magistrates) may only sit and function as such after the Minister had “designated” them as such. The same is the problem with courts that are supposed to function under PAJA. While the High Court can clai unto itself the ‘inherent jurisdiction’ to deal with laws like PAIA, and the Promotion of Equality legislation, magistrate’s courts are not permitted to do so until they have been so ‘designated’, because they are so-called ‘creatures of statute’ and not truly independent courts.
Now, some Equality Courts have been opened with great public fanfare, and, after a few initial sucesses, they are ‘closing down’, though remaining with the jurisdiction to deal with such issues. The prolifiration of ‘kinds of court’ does not at all assist in dealing with issues at hand – what must happen is that the existing courts, especially the lower courts (with a proven capability to work faste and more efficiently than the High Court – - now I’m sure to be stoned!) should receive the competence (’jurisdiction’) to deal with the issues at hand. Magistrates have for long been willing (and even yearning) to impose life inprisonment for deserving cases, and to provide justice in civil, and family, and equality, and administrative, and … matters. But, politics (and the Constitution) have kept them separate, and so did the laws passed by parliament since 1994, and how must the public know that, for ordinary criminal and civil matters, I have to go to the magistrate’s court; for equality matters, I have to go to a designated magistrate’s court; for administrative justice matters, I have to go to a designated magistrate’s court; for maintenance matters, I have to go to the magistrate’s court’s maintenance officials; for domestic violence issues, I have to go to the magistrates’ officials dealing with such issues; for …; for …
Can’t they, for once, elect real lawyers to Parliament so that the laws that are passed are not ‘toothless paper tigers’?
If every rand saved in shutting down the Equality Court goes to address the effects of structural racism — hundreds of thousands deprived of their pensions by corrupt civil servants, countless black men sentenced to prison without the benefit of counsel — then I say it is a worthwhile trade. Moeletsi Mbeki is right to suggest that the culture of perpetual affront and racial grievance cultivated by his older brother and the BEE elite is a smokescreen for systematic looting at the expense not of the white minority, but the mass of the poor.
to ass insult to injury:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=135895&sn=Marketingweb+detail
oops, I meant “add”
But the Equality Courts don’t just exist to rule on racism… If your suggestion was one where money goes to making sure that ALL magistrates are trained to deal with equality matters then I would gladly agree. That would also mean that there are more “equality courts” in a sense as every mag court would be one. Another thing would be making sure that the SAHRC can get the message across to the whole country.
One of my chief concerns is the accessability of specialised courts.
A statement on Government Communications
Equality Courts are not closing down
10 July 2009
The Department of Justice and Constitutional Development wishes to point out that there is no intention to shut down Equality Courts. On the contrary, every effort is being made to ensure that these courts are fully functional and continue to serve the public.
The South African public is urged to approach these courts whenever they experience cases of unfair discrimination, hate speech and harassment. The Minister of Justice and Constitutional Development, Mr Jeff Radebe, announced during his Budget Vote Speech on 24 June 2008, that in this financial year that all the magisterial districts will have designated equality courts and this will go a long way in enhancing access to justice. Every step is being taken by the Department to ensure that equality courts are fully functional.
In the last year approximately 445 equality cases were reported. This number represents a significant increase of cases from the year 2007/08 wherein the number of cases reported was only 200. The department would like to see more people using these courts and in this regard a number of awareness campaigns are being continuously carried out in order to popularise these courts. The department has intensified its educational campaigns and workshops to popularise the Equality Act and Equality Courts.
We would also like to point out that Presiding Officers in Equality courts are not appointed solely to deal with equality matters, but continue to handle other judicial functions and deal with equality court matters as they are reported in the equality court. Therefore, reports that Judges in Equality Courts have been sent to other courts as they did not have cases, are incorrect.
Presiding Officers in equality courts are designated by the Judge President in cases of Judges and Heads of Administrative Regions in cases of magistrates. These Presiding Officers are designated from the existing pool of Judges and magistrates following completion of a training course as a presiding officer of an equality court.
The Minister of Justice and Constitutional Development is responsible for the designation of equality courts in terms of section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000). The designation of equality courts has taken place in three phases with the intention to have equality courts in all the magisterial districts in the Republic.
The first two phases took place in 2003 and 2004 respectively wherein 219 courts were designated as equality courts. The third and last phase has commenced and the Minister of Justice and Constitutional Development has approved a notice to be published in the Government Gazette declaring all magisterial districts to have equality courts. This therefore means that prior to the finalisation of this phase there are 219 equality courts operating currently in terms of the notices published in the Government Gazette. There has never been at any stage 300 Equality Courts in South Africa.
Enquiries:
Zolile Nqayi
Cell: 082 898 6483
Issued by: Department of Justice and Constitutional Development
10 July 2009