Getting it right: lessons from South Africa’s equality framework
As a new citizen of Australia I have been disappointed to see that anti-discrimination laws come a poor second to those of my former home, South Africa. The reform process to consolidate Australia’s anti-discrimination laws is an opportunity to bring our laws in line with international best practice. South Africa is a country worth studying given its history of racial discrimination under Apartheid and its significant attempts, since democracy, to put in place a strong equality framework to address this legacy. Entrenched Equality
Equality, along with dignity and freedom, is one of the founding values of South Africa’s constitution and is mentioned in many parts of the Constitution. It is also the first right set out in the Bill of Rights. The right provides that everyone is equal before the law but contains two other important components: the first mandates and allows for measures to promote equality and the second contains anti-discrimination provisions.
The anti-discrimination sections prohibit both the state and persons from unfairly discriminating against anyone. This means that the right is enforceable against the state and against all private individuals and bodies. The right also says that discrimination can be direct or indirect which allows for situations where differentiation appears neutral but has the effect of treating people unfairly. In practice, this distinction is not very significant since the South African courts have, like the Canadian courts, developed a substantive equality approach which focuses on the actual harm caused. The Courts see equality as a means of dismantling systemic disadvantage.
The anti-discrimination sections prohibit discrimination on the basis of a list of grounds but also provide that this list is not exclusive. This means that new grounds of discrimination can be claimed as these arise. The listed grounds include:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Cases have been decided on further grounds including HIV status and citizenship. Cases may also be brought claiming multiple or intersecting grounds. The focus is on the context of the distinction in deciding whether there has been discrimination.
A final point about the anti-discrimination provisions is that there is an in-built presumption in favour of the complainant alleging discrimination.
The equality right also contains a section allowing for measures that promote equality – hence affirmative action or positive measures that preference previously disadvantaged groups are not regarded as discriminatory. The equality right is seen as positive, remedial and restitutionary.
Equality Legislation
The equality right in the new Constitution required the ‘enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality’. This led to the Promotion of Equality and Prevention of Unfair Discrimination Act, inelegantly abbreviated as PEPUDA, which is South Africa’s national equality legislation.
The Act is divided into two main sections dealing, first, with measures to prevent unfair discrimination and second, with measures to promote equality. It also contains provisions specifically dealing with hate speech, harassment and publication and dissemination of unfairly discriminatory information. It establishes Equality Courts at magistrates’ court and superior court level and sets out the procedures to be followed in such courts. Presiding officers are provided with training on the Act. The extensive range of remedies available to these courts is designed to encourage a creative, informal judicial approach that is sensitive to the circumstances of each case and the needs and interests of the parties. There are wide standing provisions allowing proceedings to be instituted by individuals, those acting on their behalf, in the interests of a group or class, in the public interest, or an association acting in the interest of its members. The Human Rights Commission and Gender Commission are also entitled to bring cases. So almost anyone can bring a case against any public or private individual or group where discrimination has been alleged. There are no fees involved in bringing a case and each party pays their own legal costs (unless it is decided otherwise). Thus, even unsuccessful complainants will generally not have to pay the costs of the other side.
On the promotion side of the Act, the state, bodies performing public functions and in many cases, other groups, are required to audit policies and laws, introduce new policies and prepare equality plans to meet their obligations under the Act. This extends, for example, to education, health services, insurance and pensions and even includes professional bodies, sports groups, clubs and associations. Everyone in society has a responsibility and a duty to promote equality.
The Achievement of Equality
Since democracy in 1994, South African courts have been very active on issues of equality. Some examples include: an HIV+ man refused employment as an airline steward was successful in challenging this practice; a woman in a Muslim marriage was awarded maintenance and inheritance rights; same-sex couples were provided with various benefits previously withheld including the right to marry; permanent residents were provided with welfare grants that were denied to them as non-citizens. The decisions of the courts have not always been positive for disadvantaged groups and some who have lost out include sex workers and women in domestic partnerships. However, the equality right, the legislation and the more active role of the courts in developing an equality jurisprudence have had an important impact on public debate and social attitudes. Like Australia and most other countries of the world, South Africa faces challenging issues of racism, xenophobia, sexism, homophobia, ageism and other forms of discrimination. A strong equality framework is a critical component in tackling these ills. Equality law also presents us with the opportunity to transform society based on a positive vision of social inclusion, tolerance and diversity.
Beth Goldblatt is a Visiting Fellow at the Australian Human Rights Centre at the University of New South Wales. She worked for many years at a human rights centre in South Africa and has held research posts at the University of Sydney and the University of New South Wales. She has written widely on equality in South Africa and has researched, taught, advocated and litigated on various aspects of human rights.This piece was first published as a Guest Blog for the HRLC’s Equality Law Reform Project website.