SAR, Vol 15 No 3, May 2000
THE INEQUALITY CHALLENGE
BY SARAS JAGWANTH
Saras Jagwanth, who is a senior lecturer in the Department of Public Law at the University of Cape Town, teaches constitutional law and is an active member of the Law, Race and Gender Unit based in the Faculty.
Inequality is often cited as the biggest challenge facing development and transformation in post-apartheid South Africa. Given the history of apartheid, this is no surprise. Indeed, severe poverty, inequality and discrimination are three key consequences of apartheid's economic growth strategy and policies of social control. As a result, a number of new laws and policies aimed at addressing different forms of discrimination have been passed since the election of the ANC government in 1994. The implementation of a concept of equality, however, has proven to be problematic.
A significant step in the process of addressing discrimination and inequality was the adoption of a new Constitution in 1996. The right to equality occupies a central place in it. For example, section 1 provides that the Republic is founded on the "values of human dignity, the achievement of equality and the advancement of human rights and freedoms." Section 1 may only be amended by a majority of 75% of the National Assembly supported by six of the provinces represented in the National Council of Provinces. Chapter two of the Constitution, the Bill of Rights, contains several important references to equality. In section 9, equality is listed as the first substantive right. Section 7(1) provides that the Bill of Rights is the cornerstone of democracy in South Africa and that it enshrines the values of human dignity, equality, and freedom. Furthermore, section 39(1)(a) provides that in interpreting the rights contained in the Bill of Rights the courts and other tribunals must "promote the values that underlie an open and democratic society based on human dignity, freedom and equality." The centrality of freedom and equality in the vision of democracy embodied by the Constitution is apparent throughout the Act, from its section on local government to the chapter on public administration. Section 36 ("the limitation of rights") specifically ensures these principles are used to guide the development and implementation of other legislation and laws.
The adoption of the new Constitution, with this strong commitment to addressing inequality, was applauded by women's organisations, trade unions, human rights groups and many individuals in the country. Indeed, the Act has earned the respect and admiration of many human rights activists around the world. But, of course, like all other policies and legislation, equally important to the writing of the document is its implementation and interpretation. In South Africa, the task of interpreting the Bill of Rights will fall primarily on the Constitutional Court. Given the importance and pre-eminence of the right to equality, how has the Constitutional Court interpreted and given meaning to it? In one of the first cases dealing with equality under the South African Constitution, Brink v. Kitshoff (1996), Judge O'Regan described the right to equality in the following terms:
"The policy of apartheid, in law and in fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as `white', which constituted nearly 90% of the landmass of South Africa; senior jobs and access to schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided. The deep scars of this appalling programme are still visible in our society. It is in light of that history and the enduring legacy that it bequeathed that the equality clause needs to be interpreted."
This early decision was important in that it made clear that the right to equality had to be understood in the context of South Africa's own history. This conception of equality sees the primary purpose of the provision being that of eradicating past patterns of disadvantage. As such, the court signalled its intention to move beyond the narrow meaning of equality (eg. formal equality) to a wider meaning of equality (`substantive equality'). While the former meaning tends to use standard measures to ensure the same rights and entitlement to all people, the latter addresses systemic and pervasive group-based inequality. In other words, this meaning would require the court to examine the social and economic conditions of groups or individuals in deciding discrimination cases.
It wasn't until the following year (1997) when the full test for equality, and the circumstances under which different treatment may constitute unfair discrimination was finally articulated by the Constitutional Court. In this case, Harksen v. Lane, it was found that differentiation will amount to discrimination if it is based on one of the specified grounds in section 9 of the Constitution, or if it is objectively based on a ground which has the `potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.' The issues of whether discrimination is unfair (and therefore unconstitutional), was addressed in this case. Unfairness is presumed if the discrimination is based on a listed or specified ground (i.e. race or gender). This question is clearly at the heart of the equality enquiry. In Harksen, it was held that in order to determine whether discriminatory treatment is unfair, various factors must be considered including: (i) the position of the complainants in society and whether they have suffered from past patterns of discrimination; (ii) the nature of the provision or power and the purpose sought to be achieved by it. If, for example, the purpose of the provision or power is aimed at achieving a worthy societal goal such as equality for all, this purpose may well result in a finding that the discrimination is not unfair; (iii) any other relevant factors including the extent to which the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their fundamental human dignity.
In theory, this test (the application of these factors) is designed to ensure that the equality clause is interpreted in the proper social and historical context. The importance of enforcing and interpreting discrimination within the context of past and existing social, political and economic disparities was further recognised by the court in the 1998 case, National Coalition of Gay and Lesbian Equality v. Minister of Justice:
"Particularly in a country such as South Africa, persons belonging to certain categories have suffered considerable unfair discrimination in the past. It is insufficient for the Constitution merely to ensure that statutory provisions which have caused such unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely."
Thus, the court seems to recognize a conception of equality, which is remedial or restitutionary in nature, to protect groups which suffer social, political and legal disadvantage in South Africa.
Implementing the concept of equality has proved more difficult. Indeed, defining groups is a complex question, especially because they can comprise persons who are simultaneously privileged and disadvantaged, and individuals who suffer more than one form of disadvantage. The decision of the Constitutional Court in City Council of Pretoria v. Walker (1998), highlights the difficulties and possible contradictions in this conception of equality, and its application by the court.
Some background information about the case is important here. As part of urban restructuring processes, a number of previously black townships, including Atteridgeville and Mamelodi, have been incorporated into the formerly white municipality of Pretoria City Council in 1994. Charges for services rendered in these areas were, largely for historical reasons, levied on a different basis. Residents in the formerly white areas (referred to in the judgment as `old Pretoria') were charged on the basis of their actual consumption measured by meters installed on their properties. Residents of Atteridgeville and Mamelodi were charged a uniform or `flat' rate for services as no meters had been installed to measure individual consumption in these areas. The flat rate was calculated on the basis of an average cost of the bulk supply of services measured over a period of time and dividing the cost amongst the number of houses in the townships.
The applicant, the City Council of Pretoria, sued the respondent, a resident of old Pretoria, for arrear charges for services rendered during a nine month period. The respondent contended that he was entitled to withhold payment on the basis that it was unfair discrimination under section 8(2) of the interim Constitution for the Pretoria City Council. He argued that it was unfair discrimination to: (i) levy a flat rate in Atteridgeville and Mamelodi which was lower than the metered rate in old Pretoria (ii) continue levying the flat rate even after the installation of meters on some properties in Atteridgeville and Mamelodi; (iii) take legal action to recover arrears only against residents of old Pretoria while following a policy of non-enforcement of debts in Atteridgeville and Mamelodi.
Given that the areas are predominately divided along apartheid lines, Walker was able to claim discrimination on the basis of race. The court held that this was a case of indirect discrimination on the basis of race ruled in favour of Walker. The fact that race was a listed ground, meant there was a presumption of unfair discrimination and the City Council was unable to rebut this presumption. This ruling reveals a critical weakness in the Constitution. Grounds for discrimination, such as race and sex, are couched in neutral terms and can be applied regardless of how the complainant was affected in the past by being a member of the group defined along the listed grounds. This, thus, led the court to conclude that unfair discrimination on the basis of race had taken place. The court held that white people in South Africa belong to a racial minority which could be regarded in a political sense as vulnerable and who `in a very special sense' need the protection of the Bill of Rights.
Based on this ruling, it appears that the court accepts that the group identified in Walker (white middle class suburban dwellers who have benefited from, rather than being adversely affected by, discrimination in the past) can be classified as a group deserving of special protection. What group then would not also qualify as deserving of special protection? This ruling has raised questions about whether the Constitution's commitment to equality, in terms of addressing systemic and pervasive group-based inequality, is being upheld. Indeed, the requirement of past patterns of disadvantage seems to have disappeared.
Discouraging for those who had hoped the Bill of Rights would be used to address discrimination and inequality in the country is South African case law. Case law reveals that it has not been the most disadvantaged groups who have invoked the protection of the equality clause in the Constitutional Court. Those who would benefit the most from this clause - indeed those who the clause was specifically designed to protect - have limited access to its application. Socio-economic barriers (the very inequalities the Bill of Rights tries to address), combined with various institutional obstacles beyond the control of the court limit its scope and application. In addition, it is the task of the legislature rather than the courts to make decisions about the best ways to equalize the distribution of benefits in society. These problems aren't specific to South Africa, rather are characteristic of most legal systems in the world. Thus, while the court's ability to effect meaningful social change through the cases should not be overestimated, critical reflection on the role of the Constitution and the Constitutional Court in addressing extreme inequality is necessary.
A Positive Act?
Perhaps a more promising sign regarding the application of the equity clause in the Constitution is to be found in other policy initiatives. Recognising systemic gender and racial inequalities in the labour market, and the continued concentration of social and economic power in the hands of the powerful few, legislation has been introduced to address current forms of discrimination and inequality. These policies and legislation are designed to give effect to the equality clause in the Constitution, and as such, are a welcome development. One such development is the Promotion of Equality and Prevention of Unfair Discrimination Act, recently passed by parliament. The Act provides for the prevention and prohibition of unfair discrimination, hate speech and harassment, and the active promotion of equality and values of non-racism and non-sexism by both state and non-state actors. In this regard it goes beyond the requirements of the Constitution, where there is only an explicit obligation on the state to promote the achievement of the rights in the Bill of Rights. The obligation on the state includes developing awareness of fundamental rights and programmes of action in order to promote substantive equality, providing assistance advice and training on issues of equality, and conducting information campaigns.
The Act also sets up Equality Courts, to be based both at High Court and Magistrates Court levels, to enforce its provisions. The powers of the court are wide-ranging and provide for such civil remedies as granting an interim or declaratory order, an apology, a directive requiring the respondent to make regular progress reports to the court on its order, etc. It is hoped that through an accessible, cheaper and more user-friendly lower court enforcing its provisions, the Act will be more able to attend to the needs of disadvantaged groups in South Africa than has the Constitutional Court.
Section 9 provides as follows:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality; legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
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