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.
There is a saying not much in line with the Archbishop Tutu inspired spirit of love and reconciliation or the general Christian inspired view that one should turn the other cheek, and it says: Don’t get mad, get even.
When it comes to those stupid, stupid white boys of Reitz Koshuis at the University of Free State and their disgusting video, I am inclined to go one step further than that and say: Get mad and get even. Moral outrage in such a case is not enough because it will not stop other racists from doing the same kind of thing in future.
In that vengeful spirit (which, I trust, will pass) I am trying to think of the legal ways in which one could get even with the white boys responsible for this outrage and with the University for allowing this to happen. The clever people with legal backgrounds who read this Blog might want to make their own suggestions of what can legally be done to send a very strong signal that this kind of behaviour will be severely punished.
First, it is obvious that the boys responsible for the video could be criminally charged with assault. In common law assault is defined as the unlawful and intentional application of force by one person on another. Even when the application of force is indirect through the application of something like urine it will still constitute assault. This was confirmed by the Supreme Court of Appeal in the case of S v A 1993 (1) SACR 600 (A).
Second, I have been asked if there is nothing in the Promotion of Equality and Prevention of Unfair Discrimination Act that could be used to hold the boys and the university to account for these actions. I had a look again and noted that section 11 of the act prohibits any person from subjecting another person to harassment.
Harassment is defined as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences” and which relates to the race of that person.
If one wades through the legalese (which this Act is unfortunately filled with) it seems the kind of actions by the boys could be deemed harassment because (i) it was unwanted; (ii) it was serious; (iii) it demeaned the woman involved; (iv) and it was based solely on the race of the woman involved.
The woman themselves or the Human Rights Commission could therefore take a case to one of the equality courts and that court would have wide powers to order the boys to to pay compensation, make an unreserved apology, and, say, to do some community work that would teach them about humility (perhaps they could be ordered to work as part of the detail that removes the buckets from townships where the bucket system is still in place).
The third question is whether the University of the Free State management – who only began the process of racially integrating residences this year, for goodness sake – could not perhaps be legally held to account. This kind of thing happens because the environment is allowed to exist in which people think it would be acceptable so the management clearly carries some moral blame for this event.
The problem is that there is no obvious way in which to hold the university to account because it will claim that although it allowed people to be segregated based on their race until last year, they now do allow integration of residences and they are therefore not discriminating against anyone anymore. It would therefore not be so easy to take the University to the Equality Court.
One could perhaps make an argument that the University – as a state institution – had a positive duty (in terms of section 7 of the Constitution) to protect, promote and fulfill the rights in the Constitution – including the rights to equality and human dignity and that it has failed to do that by allowing racially segregated residences to continue existing for 13 years after the advent of the Constitution.
But I am not sure that will work and if it does work, what remedy a court will give: can it order the management to resign or pay a fine? In any event, one hopes that the disgraceful events that came to light this week will be incentive enough for the University management to comprehensively address the problem of racism on campus. If it does not, it surely will be in for a rough ride.BACK TO TOP