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Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 28))

Abstract

Colonial rule and apartheid policy underpin the systemic discrimination, uneven human development and high levels of income inequality still experienced in modern-day democratic South Africa. While a comprehensive and laudable antidiscrimination law framework is in place; its gains have been modest and unevenly distributed. At a systemic level, deep and pervasive inequality remains the lived experienced for many South Africans.

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Notes

  1. 1.

    Report of the Ministerial Committee on Transformation and Social Cohesion and the Elimination of Discrimination in Public Higher Education Institutions, 30 November 2008, p. 6.

  2. 2.

    For historically complex reasons, exacerbated by high levels of unemployment and wage distribution weighted in favour of top-end earners, South African society remains notoriously unequal.

  3. 3.

    Section 1 Employment Equity Act 55 of 1998.

  4. 4.

    Statistics South Africa, (QLFS 3rd Quarter 2014) published in Department of Labour, ‘Commission for Employment Equality Annual Report 2014–2015’, p. 13.

  5. 5.

    Constitution of the Republic of South Africa, Act 108 of 1996.

  6. 6.

    Primarily the Employment Equity Act 55 of 1998 (the EEA) and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), and related legislation.

  7. 7.

    In South Africa dignity is central to the interpretation of the right to equality (see for example Ackermann, L Human Dignity: Lodestar for Equality in South Africa (2012)), although the centrality of dignity has been questioned (see Fagan (1998), p. 220.

  8. 8.

    Section 1(a) of the Constitution.

  9. 9.

    See the Preamble of the Constitution.

  10. 10.

    See generally Du Toit (2006), p. 1311.

  11. 11.

    This is in terms of § 9(2) of the Constitution, interpreted in Minister of Finance v Van Heerden 2004 (6) SA 121 (CC); [2004] ZACC 3 and South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).

  12. 12.

    See SAPS v Barnard and South African Restructuring And Insolvency Practitioners Association v Minister of Justice And Constitutional Development and Others; In Re: Concerned Insolvency Practitioners Association NPC and Others v Minister of Justice And Constitutional Development and Others 2015 (2) SA 430 (WCC). Although, in the context of quotas for the admission of students to university see Motala v University of Natal 1995 (3 BCLR 374 (D).

  13. 13.

    Crenshaw (1991), p. 1241 cited in South African Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development and others; Concerned Insolvency Practitioners Association NPC & others v Minister of Justice and Constitutional Development & others 2015 (4), fn. 151.

  14. 14.

    In South African Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae) 2014 (10) BCLR 1195 (CC) the Constitutional Court recognizes (at para [153]) the flip-side too, observing that ‘[p]rivilege often manifests in an individual in a multiplicity of different, intersecting and mutually constructive or destructive ways.’

  15. 15.

    Minister of Health and Another v New Clicks South Africa (Pty) Ltd & others [2005] ZACC 14; 2006 (2) SA 311 (CC) paras [96] and [434–437]; de Vos and Freedman (2014), p. 452.

  16. 16.

    Supra. See for example Larbi-Odam v Members of the Executive Committee for Education (North-West Province) 1998 (1) SA 745 (CC) involving a challenge of unfair discrimination on the basis of citizenship that was successfully instituted by foreign citizens, who were teachers, in respect of a Regulation governing the employment of teachers in permanent teaching posts: the Regulation largely prohibited the appointment of non-South African citizens to permanent teaching posts, even if the foreigners had permanent residence.

  17. 17.

    It is reported that there are approximately 15 protests each day largely as a result of poor service delivery. http://www.spotnews.co.za/index.php/news/153-s-a-protest-capital-of-the-world.

  18. 18.

    Alexander (2012).

  19. 19.

    See generally Alexander and Pfaffe (2014), pp. 204–221.

  20. 20.

    Department of Basic Education Action Plan to 2014: Towards the Realisation of Schooling 2025 (Full version, October 2011), p. 16.

  21. 21.

    In public higher education institutions, the success rate for white students in 2013 was 88.2%, while the success rate for African students was 78.9%, for colour students was 81.8% and for Indian/Asian students was 84.8%. Department of Higher Education & Training Statistics on Post-School Education and Training in South Africa: 2013 (March 2015), pp. 18–19.

  22. 22.

    Department of Higher Education & Training Statistics on Post-School Education and Training in South Africa: 2013 (March 2015), p. 20.

  23. 23.

    There are approximately 25,000 ordinary public schools and 1200 independent schools in South Africa. DBE Action Plan, p. 12.

  24. 24.

    See www.equaleducation.org.za.

  25. 25.

    Ministerial Committee on Transformation in Higher Education, ‘Report of the Ministerial Committee on Transformation and Social Cohesion and the Elimination of Discrimination in Public Higher Education Institutions’ Final Report (30 November 2008).

  26. 26.

    Report of the Ministerial Committee on Transformation and Social Cohesion, p. 40.

  27. 27.

    Other applicable legislation includes the Labour Relations Act 66 of 1995 which prohibits automatically unfair dismissals, which includes ‘discriminatory’ dismissals and unfair labour practices.

  28. 28.

    Act 53 of 2003.

  29. 29.

    Section 1 of PEPUDA.

  30. 30.

    Section 1(e) of PEPUDA.

  31. 31.

    This is significant given the adversarial nature of the South African legal system.

  32. 32.

    Section 20(3)(a) of PEPUDA.

  33. 33.

    Section 16 of the Rental Housing Act.

  34. 34.

    See also the Public Protector Act 23 of 1994. See generally http://www.publicprotector.org.

  35. 35.

    Section 6(4) of the Public Protector Act; see generally § 6 on the powers of the Public Protector.

  36. 36.

    Preamble, Human Rights Commission Act 54 of 1994. See generally http://www.sahrc.org.za/home.

  37. 37.

    Section 9 of the Human Rights Commission Act.

  38. 38.

    See generally the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act of 2002; and http://www.crlcommission.org.za/.

  39. 39.

    Commission on Gender Equality Act 39 of 1996; and see http://cge.org.za/.

  40. 40.

    Act 31 of 2007.

  41. 41.

    Section 58B (3)-(4).

  42. 42.

    See for example the Ministerial Committee on Transformation in Higher Education, ‘Report of the Ministerial Committee on Transformation and Social Cohesion and the Elimination of Discrimination in Public Higher Education Institutions’ Final Report (30 November 2008); and the Department of Higher Education & Training Statistics on Post-School Education and Training in South Africa: 2013 (March 2015).

  43. 43.

    The ECC is established by Chapter 9 of the BCEA.

  44. 44.

    Section 27 of the EEA.

  45. 45.

    Section 63 of the BCEA.

  46. 46.

    Section 64(1) of the BCEA.

  47. 47.

    The CEE is established by Chapter 4 of the EEA.

  48. 48.

    Section 30(2) of the EEA. In 2015 the Department of Labour inaugurated the EE Awards System to recognize employers that have embraced the spirit of Employment Equity.

  49. 49.

    Section 53 of the EEA.

  50. 50.

    The functions of the Commission are set out in § 13F of the Act.

  51. 51.

    See for example Media 24 Ltd & Another v Grobler 2005(6) SA 328 (SCA).

  52. 52.

    Section 10 of the EEA.

  53. 53.

    Tip AJ para [68] in Dudley v City of Cape Town (2004) 25 ILJ 305 (LC).

  54. 54.

    Section 38 of the Constitution provides for the enforcement of rights and indicates that the persons who may approach a court include ‘anyone acting as a member of, or in the interest of, a group or class of persons.’ See Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and others 2013 (2) SA 213 (SCA) for a discussion of the requirements for the commencement of a class action.

  55. 55.

    See the South African Law Commission, Project 88: The Recognition of Class Actions and Public Interest Actions in South African Law’ Report, August 1998.

  56. 56.

    See https://www.equaleducation.org.za/campaigns/legal for more detail.

  57. 57.

    See generally the trend analysis in the Department of Labour ‘Commission for Employment Equity Annual Report 2014–2015’ (2015).

  58. 58.

    Dudley v City of Cape Town (2008) ILJ 2685 (LAC).

  59. 59.

    See further the discussion in Fergus and Collier (2014), pp. 489–492.

  60. 60.

    Rycroft (1999), p. 1415. Original footnotes omitted.

  61. 61.

    See for example Op’t Hoog et al. (2010), pp. 61–83.

  62. 62.

    According to Dirk Hermann, a 2004 study by Prof du Toit of the University of Stellenbosch reveals that 71.4% of non-designated groups feel this way. Herman (2013), p. 114.

  63. 63.

    See for example South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).

  64. 64.

    See Solidarity and Others v Department of Correctional Services and Others 2015 (4) SA 277 (LAC).

  65. 65.

    See for example Dirk Herman Affirmative Tears.

  66. 66.

    On the danger of pure ‘mechanical’ or ‘ritual’ compliance, see for example Haines (2011) cited in Fergus and Collier (2014), p. 505.

  67. 67.

    At para [108].

  68. 68.

    Rycroft (1999), p. 1413. Original footnotes omitted.

  69. 69.

    These include (1) the public protector; (2) the South African Human Rights Commission; (3) the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistics Communities; (4) and the Commission for Gender Equality.

  70. 70.

    See African Development Bank ‘South Africa: The National Gender Machinery, Gender Mainstreaming and the Fight against Gender Based Violence’ (September 2009).

  71. 71.

    See for example Dr. Anthea Jeffery BEE: Helping or Hurting (2014).

  72. 72.

    See for example Dr. Herman (2013).

  73. 73.

    Brassey (1998), p. 1359.

  74. 74.

    For a critique of racial classification and race-based affirmative action see Benatar (2008), p. 274.

  75. 75.

    Solidarity Trade Union’s Centre for Fair Labour Practices ‘Constructing a future based on race: ‘racial representivity’ through affirmative action and broad-based black economic empowerment in South Africa’ Response to the Fourth to Eighth Periodic Reports of the Republic of South Africa to the Committee on the Elimination of Racial Discrimination under article 9 of the Convention on the Elimination of All Forms of Racial Discrimination. Accessed online at https://solidariteit.co.za/wp-content/uploads/2015/05/Solidariteit-VN-Skaduverslag-Mei-2015.pdf.

  76. 76.

    Solidarity ‘Constructing a future based on race’, p. 2.

  77. 77.

    See Satchwell v President of the Republic of South Africa and Another (CCT48/02) [2003] ZACC 2; 2003 (4) SA 266 (CC) in which government regulations that conferred certain benefits upon the spouses of judges but not on the permanent same-sex life partners of judges was declared unconstitutional.

  78. 78.

    See Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC) where the equality court ordered compensation and an apology to a complainant who had been working as an independent contractor teaching music to students and whose contract was terminated by the church on the ground of his sexual orientation.

  79. 79.

    However, in instances where the ground of discrimination is not listed, the onus to prove the unfair discrimination lies with the applicant. On the burden of proof generally see Harksen v. Lane [1997] ZACC 12; 1998 (1) SA 300 (CC).

  80. 80.

    Section 1 of the EEA.

  81. 81.

    Section 6(2) of the EEA.

  82. 82.

    Section 6 of PEPUDA.

  83. 83.

    Section 11 of the EEA and chapter 3 of PEPUDA.

  84. 84.

    This is illustrated by the (controversial) Constitutional Court decisions in the Barnard case and in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) in which the court maintained that it was not unfair discrimination to exercise the power of pardon in relation to a category of female prisoner (those with minor children under the age of 12 years) and to omit to do so in the case of male prisoners in the same category. See also Co-operative Worker Association v Petroleum Oil & Gas Co-operative of SA [2007] 1 BLLR 55 (LC).

  85. 85.

    United Nations Development Programme (UNDP) (2015), p. 38.

  86. 86.

    Ibid.

  87. 87.

    Hepple (2014), p. 228. Hepple points out (at pp. 227–228) the two ‘reasons why the cycle of disadvantage and social exclusion cannot be remedied solely by legislation relating to status equality’, namely, that ‘Law is both too specific and too selective in its choice of the causes in the “cycle of disadvantage” to be capable, in itself, of delivering real substantive equal rights.’

  88. 88.

    Shavell (1991), pp. 1088–1108.

  89. 89.

    Shavell (1991), p. 1088.

  90. 90.

    Shavell (1991), p. 1089.

  91. 91.

    See Klare (2008), pp. 146–188 and, for a more recent account of transformative law in the context of PEPUDA, and proposals for reform in this regard, see Kok (2008), pp. 445–471.

  92. 92.

    Hepple (2014), p. 229.

  93. 93.

    Ministerial Committee on Transformation in Higher Education, ‘Report of the Ministerial Committee on Transformation and Social Cohesion and the Elimination of Discrimination in Public Higher Education Institutions’ Final Report (30 November 2008).

  94. 94.

    For a comprehensive discussion on the concept of ‘transformative law’ in the South African context, see Kok (2008), p. 445.

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Acknowledgement

I would like to thank Ms. Abigail Osiki for her assistance in researching aspects of this report.

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  1. Department of Commercial Law, University of Cape Town, Cape Town, South Africa

    Debbie Collier

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  1. Debbie Collier
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  1. Sciences Po Law School, Paris, France

    Marie Mercat-Bruns

  2. Berkeley Law, Berkeley, California, USA

    David B. Oppenheimer

  3. Berkeley Law, Berkeley, California, USA

    Cady Sartorius

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Collier, D. (2018). South Africa. In: Mercat-Bruns, M., Oppenheimer, D., Sartorius, C. (eds) Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law. Ius Comparatum - Global Studies in Comparative Law, vol 28. Springer, Cham. https://doi.org/10.1007/978-3-319-90068-1_24

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