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.
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?BACK TO TOP