An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I was surprised to read that the Chairperson of the Human Rights Commission (HRC) Jody Kollapen announced today that it had found that barring journalists from joining the membership of the Forum for Black Journalists (FBJ) on the basis of race was unconstitutional.
The decision of the HRC apparently does not prevent an organisation like the Forum for Black Journalists (FBJ) from forming, but argues that such an organisation cannot exclude members on the basis of their race. This is slightly surprising as the Constitutional Court has said that the prohibition on unfair discrimination does not prohibit different treatment of people in all cases.
According to the jurisprudence a Court will look at the impact of the discrimination to determine whether it is unfair or not and will do so by considering several factors. First, it will look at the position of the group complaining of discrimination and ask whether the group has been discriminated against in the past. If it has, then it would be easier for a court to find the discrimination unfair. But clearly in this case white people who have not suffered discrimination in the past are the complainants so one would have thought that the discrimination would not easily be found to be unfair.
Second, one the Court has said that one should look at the purpose of the discrimination and ask whether it was an important enough purpose to justify the different treatment. In this case the FBJ has argued that black journalists are still discriminated against and that the Forum was therefore a platform where they could discuss their mutual concerns in a safe space. This, I would have thought, would have made it easier to justify the FBJ’s racial exclusive membership.
Last year there was a complaint lodged against a guest house in Cape Town who only allowed gay men to stay and the complaint was dismissed on the basis that the guest house provided one of the few really safe spaces for gay men to do their own thing. Given the fact that gay men have been traditionally marginalised and oppressed, the exclusive policy of the guest house was found not to discriminate against heterosexuals.
I thought the HRC would go the same route with the FBJ, but clearly it decided otherwise. Of course, the FBJ is free to appeal this decision in the hope that the appeals body would come to a different conclusion. I would support such an appeal.
What I would not support is the idiotic statement from the FBJ quoted in the newspaper that this is a “burning order to a black initiative”. ” …They (SAHRC) are burning us after leading us into a judicial ambush. They have found us guilty of being black and they have criminalised black people.”
Apart from being a statement devoid of logic it is also dangerous as it fails to respect the independence and impartiality of the HRC as guaranteed by the Constitution. The HRC is a body created by the Constitution and a supposedly responsible body such as the FBJ should not undermine its independence by a nonsensical and personal attack.BACK TO TOP