Centre for the Study of Violence and Reconciliation

South Africa's Equality Courts:
An Early Assessment

by
Philippa Lane
edited by Helen Fernand
(Transformative Human Rights Unit)

Race and Citizenship in Transition Series, 2005.

Philippa Lane is a former intern at the Centre for the Study of Violence and Reconciliation.

Acknowledgements

This report is one in a series of products in the Race and Citizenship Series. Thank you to the Ford Foundation, Development Cooperation Ireland and the Charles Stewart Mott Foundation for generously funding this report and the series.

Many thanks to Bronwyn Harris and Nahla Valji for their thoughtful and insightful comments.
Thanks also to:
Ashraf Mahomed, Sello Chiloane and the Equality Unit at the South African Human Rights Commission.
Rob Skosana of the Department of Justice and Constitutional Development Kemi Behari of Justice College Nazir Carrim and the Educators on the Advanced Certificate of Education (ACE): Human Rights and Values course (2003-2004), University of the Witwatersrand, for their time and sensitivity on the Edgemead case. Although much of their input went beyond the scope of this report, they taught us that what is not said is as important as what is!

Contents

Race and Citizenship in Transition Series
Introduction
Composition of Equality Courts
   Personnel
      Presiding Officers
      Clerks
      Assessors
      Interpreters
Workings of Equality Courts
   Procedure
      Figure 1: taking a case to an equality court
      Equality hearing fora
      Adjudicating an equality hearing
      Figure 2: equality court process at High Court level
      Figure 3: equality court process at Magistrates' Court level
   Conduct or Omissions prohibited by the Act
   Burden of Proof
   Who does the Act bind?
   Remedies available to the court
Exploring Unfair Discrimination on the Grounds of Race
   Constitutional cases prior to the equality courts
   Adding to the Listed Grounds?
Case Studies
   Sliver Club
      The incident
      Initial attempt to remedy the unfair discrimination suffered
      Taking the equality court route
   Edgemead
      The incident
      Initial attempt to remedy the unfair discrimination suffered
      Taking the equality court route
      Conduct of the Media
   Nashua
      The incident
      Initial attempt to remedy the unfair discrimination suffered
      Taking the equality court route
Conclusions drawn from the Early Cases
   Accessibility
   Types of cases in which equality courts may be most useful
   Satisfaction of the complainant?
The Future
References

The Race and Citizenship in Transition Series1

Bronwyn Harris, Nahla Valji, Brandon Hamber and Carnita Ernest

Race and citizenship are extremely complex concepts. In post-apartheid South Africa, they find expression on many different levels, including identity, conflict, nationalism, history, politics and inter-personal relationships. They occupy a spectrum ranging from everyday practices and interactions, to formal political and macro-economic forces. They also overlap with notions of reconciliation, justice and reparation, and, although they are separate notions with different histories, they overlap with each other. This creates an added dimension of complexity. Both race and citizenship can be (and commonly are) articulated and/or silenced to serve particular interests. Both can also feed into certain forms of violence, including xenophobia and racially motivated hate crime. Any analysis of race and citizenship must therefore acknowledge the complexity of their expression, representation and impact. Such complexity in the South African context must be assessed in relation to the country's apartheid history, as well as the processes of reconciliation best captured by the Truth and Reconciliation Commission (TRC).

Apartheid created race as a mechanism for violence. Race, in and of itself, was the social and psychological reality through which repression and violence functioned. Racism was institutionalised, legalised and internalised. South Africans saw the world in 'black' and 'white' terms and violence was commonly used to maintain this status quo. However, during the Mandela era (1994-1999), a new vocabulary emerged to describe the social order. This vocabulary spoke of nationhood, unity, racial harmony and reconciliation. South Africa was described as a 'rainbow nation'. Reference to race entered a sensitive and delicate terrain. This was a positive attempt to give South Africans a new language for speaking about – and to - each other. But, at the same time, it rendered the real, often violent, consequences of race invisible. In the Mandela era, there was little national debate on how race had influenced past human rights violations. There was also little recognition that race continues to shape identity and interactions – violent or not – within the present.

By contrast, the Mbeki era (1999-ongoing) has been characterised by a 'return to race'. This is partly a consequence of different presidential styles and roles – while Mandela had to stress forgiveness and underplay racial issues in order to consolidate a peaceful (and at times precarious) transition, Mbeki, as he stated in his 'two nations speech', has had to deal with economic inequality rooted in past racial practices. Additionally, the 'return to race' has been forced upon the society by violence: through the actions of white extremists like the Boeremag, as well as less political cases of racist hatred. Less violent expressions of/about race have also re-entered popular and political discourse: in 2000, the Human Rights Commission held hearings into racism in the media, and, in 2001, South Africa hosted the World Conference against Racism, Xenophobia and Related Intolerance.

Although race can be read across these two discrete eras - 1994-1999 and 1999-ongoing - it is important not to oversimplify or reduce the differences to how race has been articulated. Despite a general 'return to race' post-1999, there have been numerous contradictions and striking silences on the issue; for example, within the realm of violence and conflict, as well as Mbeki's own discourse (in 1996, he gave his inclusive 'I am an African' speech, which contrasted with his 'two nations' speech in 1999, but at the opening of parliament in 2001, he seemed to discard the two nations analogy in favour of a 'united' South Africa, irrespective of race). Also, while issues of race have partially emerged in the Mbeki era, the notion of reconciliation – particularly racial reconciliation - has become increasing invisible. The TRC finally completed its work in March 2003. Many have interpreted this as the end of South Africa's reconciliation process. However, incidents of racial prejudice, intolerance and violence, both within South Africa and internationally, suggest that the TRC was just the beginning and not the end of a sorely needed social dialogue about racial reconciliation.

The Truth and Reconciliation Commission (TRC)

South Africa did not 'invent' the truth commission. Since 1974 there have been more than twenty-five truth commissions around the world. But it was the South African Truth and Reconciliation Commission (TRC) that captured the world's attention. This is partly due to international interest in the fight against apartheid. Also, the TRC was the largest and best resourced commission, and it was afforded extensive media coverage, both domestically as well as internationally. This ensured that the world was exposed to the Commission, and the openness of the process meant that the violence of the past could no longer be denied. The South African model also attracted scrutiny because it promised an alternative way of peacefully resolving entrenched difference through the unique 'truth for amnesty'2 deal upon which it was premised. Consequently, the notion of using a truth commission to deal with political conflict has gained momentum and many countries are now holding their own Commissions.

TRC Chairperson Archbishop Desmond Tutu said that without the compromises made during the negotiations to ensure majority rule in South Africa, the country would have gone up in flames. From this perspective it follows that the agreement by the African National Congress (ANC) to grant amnesty to perpetrators of apartheid violence was a pragmatic choice. Amnesty was the price, albeit a costly one for victims, for saving the innumerable lives that would have been lost if the conflict had continued. However, unlike in most transitional countries to date, amnesty in South Africa was neither blanket nor automatic. Conditions applied to the South African amnesty and the TRC was the vehicle for this process.

The TRC process began in December 1995 and finished in March 2003, when the Commission handed over the final 2 volumes of its 7 volume report. 7 116 people applied for amnesty. Almost 22 000 people came forward and told how they were victimised under apartheid. The TRC made a number of recommendations to the South African government regarding financial and symbolic reparations, issues of justice and ways to address relationships between South Africans. It is these issues that still need to be grappled with and addressed.

Evaluating the TRC

The public acknowledgement of past violations was perhaps the TRC's greatest success; as the brutal horrors of apartheid found their way, via the media, into the living rooms of every South African. An undeniable historical record has been created. However, apartheid history still remains contested and fraught with racialised interpretations; for example, many white South Africans continue to deny the impact of apartheid and many dismissed the TRC itself as a 'political witch-hunt' (cf. Thiessen, 19963). The role of the TRC - in both writing history and as an historical process itself – demands ongoing scrutiny.

At a narrower, more immediate level, a minority of victims did uncover suppressed truths about the past. In some cases, missing bodies have been located, exhumed and respectfully buried. For others, the confessions of perpetrators have brought answers to previously unsolved political crimes – crimes, which the courts, due to expense and inefficiencies, may never have tried. However, for many, the TRC began a process that it was unable to complete. Many of the victims who went before the TRC, with the hope that their case would be investigated, feel let down and no closer to the truth than before they publicly told of their suffering. Irrespective of the feasibility of investigating every case, victims' high expectations of the TRC have been dashed, and in their eyes, this has undermined its credibility.

Justice also remains a burning issue. Politicians may be able to justify the exchange of formal justice for peace, but it was difficult for victims to watch while the perpetrators received amnesty. Not only were many perpetrators 'let off the hook', victims feel let down and disappointed by the government's response to the TRC. Regarding financial reparations, the Commission recommended that the government should pay those victims identified through the TRC process R3 billion, in annual installments over a 6 year period (this total figure represents 0.001% of the country's annual R300 billion budget, which translates into R136 000 per individual). However, the South African government has only agreed to pay R30 000 per individual, in a once off payment. The Commission also recommended that business and other apartheid beneficiaries should pay a once-off wealth tax and that the country's inherited apartheid debt (which accounts for approximately 20% of the government's annual budget) should be restructured in order to free up money for development and redistribution. Again, the government chose to ignore these recommendations. This has left victims feeling betrayed. It also does not bode well for long-term reconciliation. As CSVR researchers, Polly Dewhirst & Nahla Valji (2003) note,

The 'miracle' of a new SA is hardly sustainable if it is built without restoring the dignity and humanity of the majority of its citizens, nor if it fails to address the economic inequalities which fuel social conflict.4

There are also debates about the broader merits of the TRC. At the very least the reconciliation project, with the TRC at the helm, has brought South Africa through the transition period with relative political stability. The humanist approach of Mandela and Tutu brought compassion to a brutalised country. Despite the horrors revealed by the TRC, glimmers of humanity shone through and provided hope for the future.

However for some, despite the merits of the TRC, 'reconciliation' is merely a euphemism for the compromises made during political negotiations - compromises that ensured continued white control of the economy. From this perspective, reconciliation is meaningless without structural change. A related, more cynical view is that the rapprochement between the old and new regimes was a strategy to consolidate a new black elite under the banner of reconciliation.

Many argue that the TRC missed the bigger picture by defining victims only as those who suffered intentional violence. Because the TRC focused on victims of gross human rights violations, such as torture and murder – it did not include the 'ordinary' victims of apartheid – the millions of South Africans who suffered from land removals, forced displacements, the migrant-labour system, Bantu education etc. As such the TRC did not engage directly with the institutionalised, structured ways in which racist policies affected and victimised people on a daily basis. Those who suffered more broadly from the economic ravages of apartheid and were not victimized directly by political violence were excluded from the TRC. An important question to ask is: what mechanisms do those, excluded from the apartheid state and then from the TRC, have for defining and consolidating a sense of citizenship in the 'new' South Africa?

Similarly, the degree to which the TRC used race as an explanatory variable in its understanding of the abuses it investigated remains questionable. In some cases, 'race' was generally collapsed into 'political motive', as exemplified by the amnesty decisions in the Amy Biehl, Chris Hani and St James' Massacre cases. However, this was done inconsistently and the relationship between race and politics was not clearly defined. Overall, the reconciliation process engaged less with 'black and white' issues then with inconsistent 'political' definitions of perpetrators and victims. This has had the after-effect of divorcing race, and racial identity, from the violence of the past. It similarly keeps race separate from understandings of violence in the present.

A related point is that, as a transitional justice mechanism, the TRC accepted and legitimated certain explanations for the violence of the past. In this way, it has played a key role in influencing the society's moral reactions to violence. This is specifically evident in the area of amnesty. The question needs to be asked, despite the compromises made to set up the TRC, has amnesty undermined South African citizens' sense of morality? Has it contributed to ongoing violence and impunity? Has it impacted upon how different race groups see each other? There have been various evaluations of the TRC, but none have taken into account the ways in which it has explicitly addressed race, morality and citizenship as components of past human rights violations and factors in contemporary social relations. It is precisely these questions that the Race and Citizenship in Transition Series has sought to address.

The different perspectives surrounding the TRC demonstrate the complexity of dealing with oppression and violence – and how past events shape the process of reconciliation.

The TRC was not alone in its attempts to build reconciliation in South Africa. A number of other institutions were set up to deal with the legacy of the past. These included for example the Land Claims Court and the Human Rights Commission. Other structures, such as the Independent Complaints Directorate, were set up to monitor ongoing abuses by the police. However the degree to which these institutions, and the TRC can be said to have consolidated reconciliation and effected transformation can, at best, be described as ongoing but desperately incomplete. There are ongoing police abuses, young people still express feelings of marginalisation, racism and racist incidents continue to take place, and the poor have not substantially benefited from the changes in the country.

Levels of Reconciliation

The process of reconciliation can be said to operate on a number of levels, i.e. the political, community and individual levels.

At the political level, reconciliation has been embodied in the compromises that lead to a political peace. This process can be said to be broadly successful, as it has brought political stability to South Africa.

At the community level, despite some successes by the TRC, reconciliation is largely incomplete, with many of the old racial and political divisions remaining in place. This is evidenced through high levels of residential segregation between black and white South Africans residentially. It is also expressed between different groups divided along political affiliation, such as ANC and IFP supporters, and xenophobic hostility between South Africans and foreigners, particularly those from elsewhere in Africa.

At the individual level, the question is far more complex and is bound to how individuals feel in relation to the process of reconciliation. Many individual victims feel that their needs have not been met by the TRC. At the same time, many of those who benefited from apartheid are still denying their complicity status. This is linked to the many who refuse any responsibility for reparations and redressing the past. There is also an expectation that the next generation will somehow begin with a 'clean slate' (Oakley-Smith5). The ongoing impact of a racist and violent past continues to play out through incidents of racist hate crimes and expressions of xenophobia. Hostility towards foreigners, particularly black Africans, commonly results in violence and is spurred on by overly zealous views of nationalism in the 'new' South Africa. In addition, many South Africans are finding themselves questioning their role in the country. This could be linked to the many young people who are leaving the country as they feel there is no future for them in South Africa.

A Crisis of Citizenship

We would like to suggest that there is a 'crisis of citizenship' in South Africa at present, which threatens the genuine reconciliation begun through processes such as the TRC. This crisis manifests itself in ordinary people asking where they belong in the new society. This crisis suggests that there is much work that needs to be done to consolidate the process of reconciliation and a sense of inclusive citizenship. The Race and Citizenship in Transition Series is a space for exploring this citizenship crisis, along with the related issues of race, reconciliation, violence and identity in South Africa. Key issues to be examined include:

The Race and Citizenship in Transition Series is funded by the Ford Foundation, Development Cooperation Ireland and the Charles Stewart-Mott Foundation.

Series Editors

Bronwyn Harris
Nahla Valji

 

South Africa's Equality Courts: An Early Assessment6

The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people.

Preamble to the Promotion of Equality
and Prevention of Unfair Discrimination Act No 4 of 2000

Introduction

Achieving greater parity amongst South Africans has been such a profound wish for many, including those tasked with drawing up the final Constitution,7 that not only is equality named as one of the founding provisions in Section 1 of the Constitution, but the Constitutional drafters made certain that equality legislation would be developed by adding a requirement to Section 9 that legislation be passed to prevent and prohibit unfair discrimination.8

This mandate found expression in the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 ('the Act'). It is a pivotal tool for facilitating South Africa's transition from a history of legislated discrimination to a future where equality is actively promoted through legislative measures. The Act aims to eradicate the legacy of inequality within South Africa and it establishes specialist courts as key mechanisms for achieving this.

One of these is a specialised Chamber within the existing system of High Courts and Magistrates' Courts, known as Equality Courts.9 Equality courts have procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination. Cases can run concurrently with criminal cases and presiding officers are encouraged, in certain instances, to make an appropriate civil remedy, before referring the matter to the Director of Public Prosecutions for possible criminal prosecution (Bench Book for Equality Courts ('Bench Book'), n.d.). The first courts began operating on 16 June 2003 with cases commencing in late 2003. As of August 2004, 75 cases had been lodged with equality courts, with only seven finalised.

This paper outlines the operation of equality courts: their personnel and unique procedures. It further explores one of the prohibited grounds of discrimination, namely, racial discrimination. Finally, it will take a brief look at three of the first racial discrimination cases brought before the equality courts. Media articles and interviews with people closely related to the cases inform each case study. In addition, interviews were conducted with those involved in the establishment and monitoring of the courts from within the Department of Justice, Justice College and the South African Human Rights Commission.

Composition of Equality Courts

Equality courts operate as a specialist Chamber within Magistrates' and High Courts. Section 16(1)(a) of the amended Act, automatically designates all High Courts equality courts, whilst Magistrates' Courts can only be designated when they have specially trained personnel in place.

Magistrates' Courts deal with the bulk of South Africa's criminal trials: over 95% of all criminal trials call there. This makes them extremely busy institutions. As of late 2002, Magistrates Courts had a backlog of almost two hundred thousand criminal cases (Leggett, Louw, Schönteich and Sekhonyane, 2003).10 The Department of Justice is establishing several speciality courts, equality courts being but one, which must be incorporated and accommodated within the existing court infrastructure. This has the potential for spreading resources, in particular human resources, thinly. In cognisance of this, the Department of Justice has followed an incremental 'roll-out' of equality courts. By early March 2004, 60 equality courts had been established at magisterial level. By September 2004 this had risen to 220. By March 2005 the numbers should have increased by another 170, bringing the total number of magisterial based equality courts to 390 (Equality Legislation Implementation Project, Department of Justice, 2004). This would mean that every magisterial district in South Africa has an equality court (Skosana, 2004). Before designating an equality court, the Department of Justice investigates the resource needs of the court and provides sufficient supplies of information technology, stationery and furniture. Providing increased numbers of human resources has been more problematic as trained personnel are scarce and already overworked (Skosana, 2004).

Personnel

Equality courts are populated by a number of role players: specially trained adjudicators (known as presiding officers) and clerks; 'assessors' to assist the presiding officer to reach a just decision in special cases; and interpreters. Each role player is discussed below.

Presiding officers
The judge or magistrate who adjudicates within an equality court matter is known as a presiding officer. The amended Act stipulates that the Judge President, in the case of High Court judges, and the 'head of an administrative region,' in the case of Magistrates, will appoint presiding officers. Appointments are made after completion of a designated training course.

The training of equality court staff is co-ordinated by the Justice College, based in Pretoria, which offers functional training for legal staff. By September 2004 approximately 800 magistrates had undergone a three-day training course in equality matters and the unique procedures of the equality courts (Skosana, 2004). A further 250 potential presiding officers were to undergo training in November 2004 (Equality Legislation Implementation Project, Department of Justice, 2004). The course covers the following areas:

Clerks

Clerks play a central and somewhat upgraded role in the operation of equality courts. The clerk is the main point of public contact between the complainant (the person bringing the case to court), respondent (the person alleged to have unfairly discriminated against the complainant) and the presiding officer. They also undertake the normal administrative duties allocated to court clerks. But clerks of equality courts are additionally required to make a substantive assessment of the complaint and make an initial determination on whether the case should come before an equality court (although the presiding officer makes the final decision). Where a lawyer does not represent complainants, clerks must offer assistance with lodging the complaint and with finding professional assistance. Training under the auspices of the Justice College intends to supplement this enlarged role and clerks and registrars (the clerks of High Courts) normally train over three days. In addition, those personnel who will go on to provide peer training undertake a supplementary two-week course. By late May 2004, approximately 700 clerks had undergone training with approximately 100 clerks having achieved the status of trainer (Skosana, 2004). By September 2004, 90% of the designated courts had a trained equality clerk, with a further 330 clerks to undergo training in November 2004 (Equality Legislation Implementation Project, Department of Justice, 2004). The training, echoing much of the presiding officers' course, includes the following topics:

The reaction of clerks towards the adequacy of the training and its procedural manual, the Bench Book for Equality Courts, has been lukewarm. Some complain that the training was far too short. For example, the Western Cape clerks were sent on a short introductory course to ascertain if they were interested in training to be equality clerks, and then the formal training took place over two days. One equality clerk, who is also the Regional Clerk for ten criminal courts, said she was not able to ask any questions during the training. The Bench Book also neglects to deal with how clerks should process appeals, for example.

Assessors

Section 22 of the Act provides for the use of 'assessors.' Assessor is a slightly misleading title as this role within an equality court is primarily to bring specialist knowledge to the bench. Either party to the dispute, or the presiding officer her or himself may suggest the appointment of an assessor and, if it is considered to be in the interests of justice, up to two assessors may be appointed. They will thereafter be members of the court, bound by all applicable laws and codes of conduct. A presiding officer is guided in determining whether it is in the interests of justice to appoint assessors after taking into account factors such as:

Assessors are selected on the basis of their knowledge and membership of distinct communities, which can include a specialist insight to disability or gender issues in addition to the more obvious cultural questions. They do not need to be legally trained. Indeed, the Act specifies that the role of the assessor is to assist the presiding officer in determining questions of fact, not law. In this way they operate as a lay jury would in other common law jurisdictions. If one assessor is appointed, then, in cases of dissent, the presiding officer's opinion prevails. However, in cases where two assessors dissent from the presiding officer's finding of fact, their decision will prevail. Assessors are also able to assist the presiding officer in reaching an appropriate remedy at the conclusion of a case.

Whilst assessors can clearly play a part in cases where community based knowledge and expertise is important, the Regulations are not clear on the issue of assessors with technical rather than community based knowledge. For example, is it possible to appoint an actuarial scientist as an assessor for a complicated discrimination case in the insurance sector? (Bench Book, n.d., p.88)

Interpreters

To ensure that court proceedings are accessible to all and that they are conducted in the language of the parties' choice –a constitutional protection – interpreters, it is envisaged, should be used often in equality courts. Interpreters do not currently undergo specialist training to deal with equality matters, although this is being considered by the Department of Justice (Skosana, 2004).

Workings of Equality Courts

Procedure

Access to a courtroom can be blocked by procedural rules that determine who may and, more importantly, may not bring a case to court. Lawyers refer to this as 'Standing'. South Africa has consistently widened the rules relating to Standing in constitutional cases since the passing of the Interim Constitution, and the Act continues this trend ensuring that as many people as possible can bring a case to an equality court. Section 20(1) of the Act decrees that the following people have Standing:

The procedure for taking a case to an equality court is laid-out in the Regulations, which also contain copies of the forms used to lodge the dispute. Figure 1 (below) illustrates the process. The person wishing to bring the case, known as the complainant, must go to the court (in most cases the nearest magistrate's court) and ask for the equality clerk. The equality clerk will then assist them to fill in the requisite form to institute proceedings. The information required includes details of the complaint and the relief sought, as well as the reaction of any other institutions the complainant has approached. Forms may be downloaded from the Department of Justice's special equality website (http://www.doj.gov.za).

Fig 1: Taking a case to an equality court
Equality Hearing Fora

When the complaint is lodged, the clerk must then inform the person against whom the complainant wants to bring the case, known as the respondent, of its contents and she or he is given an opportunity to present information to the court. When the clerk has gathered all the information together, the case is referred to the presiding officer. The presiding officer does not necessarily need to hear the case, as Section 20(3)(a) read with Regulation 6(4) allows for equality cases to be heard in an equality court, 'another appropriate institution, body, court, tribunal or … an alternative forum.' Alternative fora include:

If the presiding officer decides that a matter should be heard in the equality court, they will set a court date for a 'Directions Hearing.' The Directions Hearing brings together the complainant, respondent and the presiding officer. It is at this Hearing where the presiding officer will resolve all issues relating to the conduct of the proceedings and other administrative and procedural matters.

Adjudicating an Equality Hearing

Section 4 of the Act includes a set of 'guiding principles' to be applied during the adjudication of equality hearings. Generally, guiding principles have an ambiguous legal status. However, Section 4 does not contain any principles that are out of keeping with the Act's aims to promote equality and prevent unfair discrimination, harassment and hate speech. For example, the Section asks that the proceedings ensure:

The procedure for taking cases to the equality court hearings varies slightly, depending on whether the court is at a High Court or Magistrates' Court level (see Figures 2 and 3 below). However, the key difference to bear in mind is that if a decision is made in favour of a complainant in a Magistrates' Court on an unlisted ground, the decision must be confirmed by a High Court before the matter is settled.

Fig 2: Equality court process at High Court level
Fig 3: Equality court process at Magistrates' Court level
Conduct or Omissions prohibited by the Act

The Act allows for cases to be brought before the equality courts that relate to harm suffered due to unfair discrimination, hate speech and/or harassment.

Section 2 lists the Objects of the Act to include:

Determining what is and is not 'unfair' discrimination requires reference to several sections. Section 1(viii) of the Act defines 'discrimination' as:

… any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly –
(a) imposes burdens, obligations or disadvantage on, or
(b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

The prohibited grounds are the same sixteen grounds specified in Section 9 of the Constitution,11 plus similar, or analogous, grounds that the court rules to share the same demeaning characteristics as the listed grounds.

The test for unfairness is detailed in Section 14. It largely codifies the Constitutional Court jurisprudence on to the right to equality, that is, unfair discrimination is differentiation which:

Conversely, discrimination will be considered fair if it amounts to positive measures for the protection and advancement of previously disadvantaged groups, for example, a sport's coach selecting team members from historically disadvantaged groups. The court must take into account the context of the contentious event. In determining the context, the presiding officer must seek to:

… understand the overall impact of the discriminatory action in the context of people's lives. This includes an examination of the history and socio-economic conditions of the individuals and groups concerned, as well as the impact of the impugned provision on social patterns and systemic forms of disadvantage. (Bench Book, n.d., pp. 124 -125)

Overall, the Act strives to find ways to ensure the courts will either permit positive measures or issue judgements that seek equality of outcomes and opportunities, described more popularly as substantive equality.

Burden of Proof

The Act imposes a major normative change in its attempt to remove the procedural obstacles that usually block the way of pursuing discrimination cases. The complainant must lodge her or his case with the Court. If, on the face of the papers, it appears they have suffered unfair discrimination then the Respondent bears the burden of proof. That is, the Respondent must show, on the balance of probabilities, that discrimination did not take place or, conversely, that any discrimination was fair. This requirement that the Complainant must show a prime facie case does not mean that the Court will accept any evidence laid before it. The requirement is that the Complainant will have lodged sufficient evidence that, if not rebutted or otherwise challenged, is likely to be believed by the Court.

Who does the Act bind?

Section 6 of the Act imposes what lawyers refer to as a horizontal obligation to respect the rights of others. This means that the Act binds private and legal persons, in addition to the usual vertical obligation, where only the state would be obliged to comply. South Africa has led the world in championing the horizontal application of Bill of Rights provisions in a clear attempt to remove 'private apartheid' from spheres where the state has historically played a minimal regulatory role.

Remedies available to the Court

Innovation is not limited to the procedures encouraged by the Act, Section 21(2) also explores new types of Orders the courts can hand down. The aim is to promote '… remedies to improve and educate offenders, rather than merely punish them' (Bench Book, n.d., p. 139). Possible Orders available to the courts are:

Magistrates' Courts are also empowered by Section 19(3)(a) to fine in excess of the limit imposed by the rules governing those courts, however, amounts awarded under this Section must be remitted to the High Court for approval by a judge.

Exploring Unfair Discrimination on the Grounds of Race

Whilst the Act imposes a general prohibition on unfair discrimination, it also specifies particular types of discrimination prevalent in South Africa. Race is captured by several of the 16 prohibited grounds as detailed in Section 1 (xxii), namely:

any other ground which causes or perpetuates systemic disadvantage, undermines human dignity, or adversely affects the equal enjoyment of rights or freedoms.

Section 7 states that 'no person may unfairly discriminate against any person on the ground of race.'

Constitutional Cases prior to the Equality Courts

Ironically, given the disparity of equality within South Africa due to the combined legacies of apartheid and colonialism, it was white respondents who complained of racial discrimination in the leading Constitutional case on racial equality. City Council of Pretoria v Walker (1998 (3) BCLR 257 (CC)) is hailed as a textbook case on contextualising alleged unfair discrimination. It showed that, when all factors are taken into account, reasonable restorative measures will not fall foul of equality laws. Walker complained that residents of wealthy suburbs were charged electricity at metered rates on a higher tariff than the residents of the neighbouring townships. Not only were the township residents charged a lower tariff, they were charged at a 'flat rate' regardless of the household's actual consumption level. The Constitutional Court took an ethical approach to assessing the alleged racial discrimination, investigating (amongst other things) the inherited position of the council vis a vis metering equipment, the racial demographics of the areas under discussion, the council's monitoring of their methods and constant search for more just methods, and the systemic discrimination suffered by the township residents. The majority found that the council did discriminate on the grounds of race but that – for the above reasons - this form of discrimination satisfied the limitations test and was therefore not unfair.

It is interesting to note that this case is also an example of indirect discrimination, as the council's policy did not refer to race at all. This prompted Judge Sachs to hand down a separate Judgement arguing that the discrimination was not racially motivated, but was on the analogous grounds of geographical location. It is submitted that the majority was correct in analysing the discrimination in racial terms (and in any event, years of academic and development research had already linked geographical locale with racial discrimination as a major complaint in apartheid town planning was that the most disadvantaged members of society were forced to live furthest from the industry and commerce centres and so had the highest transportation and other costs to bear when trying to find and hold down employment).

The Constitutional Court recently refused to determine whether the discrimination suffered by attorneys enrolled under former 'Homelands' legislation, which put them at a disadvantage to attorneys enrolled under the Attorneys Act, was unfair discrimination on the grounds of ethnic or social origin. In Mabaso v Law Society of the Northern Provinces (CCT76/03 Judgement delivered May 2004), the Constitutional Court held that the complainant was correct to say the legislation he complained of was discriminatory, but they would not confirm that they considered it to be on the grounds of ethnic and social origin. The Complainant came to his conclusion based on an argument that the purpose of the former 'Homelands' was to separate, along ethnic lines, black South Africans. It was unfortunate for the development of equality jurisprudence that both the Supreme Court of Appeal and the Constitutional Court refused to deliberate on the manner of the discrimination suffered.

Adding to the listed grounds?

The shift in the onus of proof in equality cases, as detailed above, applies to the 16 listed grounds. But if the discrimination does not fall within one of these grounds, the Complainant must first show that the discrimination is differentiation of a similarly unfair and unjust type. Whilst the listed grounds appear extensive, it is important to note that the drafting stage of the Act saw intensive lobbying from many quarters for the inclusion of additional grounds that supplement, inform or relate to racial discrimination (cf. Equality Review Committee Workshop, 2003).

'Nationality' was proposed by many organisations for inclusion in the list due to the high levels of xenophobia encountered by refugees and other immigrants. 'HIV status or perceived status' was another mooted ground and many African women suffer from the combined effects of discrimination based on gender, race and HIV status. 'Socio-economic status' was another ground lobbied for and the desperate poverty, which is the reality for many South Africans, is disproportionately borne by persons of colour. Given the particular marginalised status of members of these groups, extending the reversal in the burden of proof would aide access to justice.

Parliament chose not to include these grounds automatically. Instead, the Equality Review Committee, established in terms of Chapter 7 of the Act, was issued with a Directive that they must report back to Parliament within one year as to whether the additional grounds of HIV/Aids, nationality, socio-economic status and family responsibility and status should be added to the prohibited grounds in Section 1(xxii). The Committee researched the proposed grounds and came to the conclusion that all of them should be expressly added to the list of prohibited grounds (Equality Review Committee Workshop, 2003). The Department, to date, has not initiated an amendment of the Act to include these grounds.12

Case Studies

Whilst over 70 cases had been lodged with the equality courts by the end of 2004, only seven cases had been finalised. Three of these, the earliest cases to deal specifically with racial discrimination, were chosen for analysis in this report. They are the Sliver Club case (which was the first equality court case to be heard by a South African court) concerning the racist door policies of a privately owned nightclub; the Edgemead case concerning a racialised attack on a secondary school learner; and the Nashua case concerning racially offensive emails sent via a company computer system. The Nashua case is particularly interesting as it was the only case that proceeded to trial, and therefore the functioning of the entire procedure can be assessed. In each of the three cases, the parties contacted, and were assisted by, the South African Human Rights Commission (SAHRC).

Sliver Club
The incident13

Entertainment venues often have a door policy, enforced by security staff known colloquially as 'bouncers', that determines who can and who cannot enter the premises. Whilst this should act as a safety measure, for example, ensuring that intoxicated or otherwise disruptive people are kept out, the Sliver Club case shows how sometimes this policy can include elements of unfair discrimination. In October 2003, Marcus Pillay, the very first equality court complainant, tried to follow his partner into Sliver Club in Cape Town, but was stopped at the door by the bouncers. They claimed he was being refused entry on account of his appearance and dress. However, he was dressed comparably to other patrons and his partner - who had been allowed entry just a few moments prior to his refusal. Pillay, who is coloured,14 and his partner, who is white, alleged the exclusion had been motivated by racism. An argument ensued and, during the altercation both men were 'roughed up' by the bouncers.

Initial attempt to remedy the unfair discrimination suffered

The men reported the incident to the police and sought medical attention. They also reported the incident to the owners of the Club, and demanded an apology and a change to the vague and subjective criteria of the entrance policy. The owners refused to engage. Pillay's partner, being a Professor of Constitutional and Human Rights Law, had knowledge of the equality courts so Pillay considered taking the matter there. He called Cape Town Magistrates' Court for advice, but was told by the clerk that no such equality court existed. Meanwhile he downloaded the 'institution of proceedings forms' from the internet and with the help of a Department of Justice official, eventually lodged the case in the Cape Town Magistrates' Court (which, contrary to the initial information, was a designated equality court after all), The Respondents were listed as both the owners of the bar and the bouncers. The Hearing was set down for 10 February 2004.

Taking the equality court route

Believing the equality court process to be informal, and given his partner's expert knowledge, Pillay did not seek legal assistance with the lodging of the complaint. The Respondents, however, engaged legal assistance – in the case of the bar owners, a senior advocate. Consequently, Pillay then approached the Legal Resources Centre (LRC) for assistance, who in turn directed him to the South African Human Rights Commission (SAHRC). Ashraf Mahomed, the provincial co-ordinator of the SAHRC in the Western Cape, agreed to assist in a legal capacity. The Club owners approached Pillay with an out of court settlement, but refused to admit guilt or change their admissions policy. Pillay declined to settle on those terms.

Discussions continued between the parties' lawyers and during a meeting in early February 2004, the SAHRC indicated they would support the case to its completion. The Club owners then agreed to a settlement prepared by the Complainant. The settlement included:

The Cape Magistrates' Court, sitting on 10 February 2004 as South Africa's first equality court, ratified the settlement, making it an Order of the Court. Pillay requested that the cash settlement be paid to the newly formed charity, Siyazenzela. Media reports stated that the Club owners asked Pillay and his partner to assist with the redrafting of the Club's door policy (SABC News, 2004).

Edgemead
The Incident

This case involved the assault of a female African learner by a female white learner (both 16 years-old), the white learner's 20 year-old boyfriend and her white mother. The assailants also directed racist abuse at the victim during the assault. The assault occurred in November 2003, after school hours, at Edgemead High School. The incident was sparked after the African learner intervened in a dispute involving the mother and boyfriend with a coloured learner, whom they were accusing of bullying the white learner. When the African learner objected to the manner in which they were speaking to the coloured learner, she was assaulted and sustained offensive racial insults.

This particular case attracted a huge amount of media attention. Reports were controversial, contested and sensational. Headlines included 'Teen beaten by classmate in racial attack' (Cape Argus, 2003, p.1); 'Black pupil humiliated in 'racist attack'' (SABC News, 2003); 'Pupil hit, defecated on in race attack' (iafrica.com, 2003a). Also, the learners' names were included in the media reports until the magistrate in the subsequent criminal trial ordered that their identities be withheld. The Bench Book for Equality Courts contains a chapter titled 'Handling Controversial Cases and Judicial Ethics', which anticipates that '(s)uch cases will be numerous under the Equality Act …' because '(c)ases on equality and non-discrimination are often sensitive and some are controversial.' (n.d., p.183) Given the extensive media profile afforded to the Edgemead incident, this case study says as much about the media and the public as it does about the direct role players and the education system. Because of the sensitive nature of the case and the constant media exposure it was decided that none of the Respondents or Complainants should be interviewed for the study. This is an obvious limitation of the research and one that represents an avenue for future exploration.15

Initial attempt to remedy the unfair discrimination suffered

Because the incident took place within the context of the school - the learners were waiting to go home after school and the assault spilled onto school property16 - Edgemead High and the Department of Education came under intense scrutiny by the media, the South African Human Rights Commission, and various NGO and civil society bodies.

In the days immediately following the assault, a number of statements, claims and counter-claims were publicly made about the way in which the school handled the incident, prompting the Head of Education in the Western Cape to note that:

The range of misinformation, misinterpretation of events and generally ill-informed statements made by all and sundry is clearly enough justification for the WCED (Western Cape Education Department) to want to manage the flow of information more sensibly and more responsibly. (Swartz, 2003)

Similarly, after taking statements from the Western Cape Education Department, the school authorities and the victim, the South African Human Rights Commission (SAHRC) noted that, 'We were not satisfied. It all ended up being a dispute of facts. There was a lot of confusion and we thought it better to take it to the (equality) court'. (Potgieter, 2003)

In response to the incident itself, a media release issued by the Chair of the School Governing Body claimed that,

… senior staff members arrived. But then the fight was over. They dealt with the volatile and tense situation by ordering (the mother) to leave the premises and report to the school the next day … . Immediately afterwards, the school advised (the victim), who was by this stage in the care of her older sister, to go straight to the Bothasig Police Station and lay a charge. The next day, the deputy (headmaster) interviewed (the white mother) and her daughter, while the headmaster interviewed (the victim) and her mother. (Versveld, 2003)

Various media reports suggested that the victim and her family were unhappy with the way in which the incident was handled (cf. iafrica.com, 2003a; Roelf, 2003). In addition, the victim's mother was reported to have previously written to the school regarding 'a racial problem earlier in the year' but 'received no response' (Schronen and Bailey, 2003). The head pupil of the school made a public statement expressing her shock at what had happened and her disappointment that 'some people have not yet grasped the ideals of the new South Africa' (Schronen and Bailey, 2003). The Provincial Department of Education launched an investigation into the incident. Witness statements were obtained. And the white learner faced a disciplinary hearing at the school. Both learners were offered psychological counselling and the opportunity to write their end-of-year exams.

Taking the equality court route

With the assistance of the Western Cape office of the SAHRC (and, in particular, that of Ashraf Mahomed), the victim lodged a case with the Blue Downs Magistrate's Court equality clerk. The white learner, her mother and her boyfriend were named as respondents, as were Edgemead High School and the Provincial Minister for Education in the Western Cape. The latter two were added as respondents in order to examine educational policies and practices relating to racist incidents (Mahomed, 2004).

The complainant also opened a criminal case against her assailants. The three were charged with assault with intent to do grievous bodily harm and the mother was also charged with crimen injuria. The mother and boyfriend had to post bail of R1 000 each. The accused laid counter charges along similar lines, but the Public Prosecutor did not proceed with this due to lack of evidence. The complainant later dropped the criminal charges as the equality court process reached its conclusion.

A settlement was reached between the complainant and the respondents, which was made an Order of the equality court on 7 April 2004. It contained the following:

After months of being publicly identified, the magistrate in the criminal case ordered that the names and photographs of the accused not be used in subsequent media reports.

Conduct of the Media

Whilst it is to be expected that an attack of this nature will generate media interest, the sensationalism and contradictory reporting that initially accompanied the incident was unfortunate, given the sensitivity of the case. This preliminary attention gave way to mostly silence from the media towards the end of the case, with very few reports of the settlement and then no further coverage. On the one hand, this points to the ability of the equality courts to resolve matters quickly and quietly, which is especially valuable in cases such as this, where minors are involved. On the other hand, the early media reporting of the incident racialised and sensationalised it with particular focus on the racial slurs used and the alleged defecation by the white learner on the African learner. Subsequent reporting after the settlement could have popularised the findings and played a role in educating the public, correcting misperceptions from earlier reporting and promoting the aims of the Act.

Similarly, the school and the headmaster were generally portrayed in an unsympathetic light and there was little public examination of the school's attempts to genuinely look internally and find ways to address any institutional discrimination. For example, the school entered into discussion with a range of academics and practitioners, including those at the University of the Witwatersrand specialising in human rights and values in education (Carrim, 2004).18 The lack of media coverage of the school's attempts to examine its potential failings is another lost opportunity to positively promote transformation and create the link between justice (through the equality courts) and reconciliation (in terms of processes and relationships within the school).

In stark contrast to most of the other media reports, one report outlined the role of all the officials involved and the procedure to be followed after the learner had lodged her case (iafrica.com, 2003b.). The report also outlined the power of the courts to order an 'audit' into how an institution, in this case a school, deals with unfair discriminatory practice. To this end, it served as a valid public education tool and promoter of the equality court.

Nashua

The third case involves racial tension in the workplace between colleagues. It is also the only case of the three that went to Trial and the presiding officer issued a judgement, rather than merely condone an out of court settlement.19 The case itself was fairly complex, involving various role players and 'steps' before it reached the equality court, and thus serves as a better indicator of the capacity and capability of the equality courts to deal with these issues.

The incident20

Elliot Senwamadi had a conversation with a colleague about the dismissive behaviour of the colleague's wife towards him. He thought that the conversation had gone well. Several hours later, Andrew van der Westhuizen, the colleague in question, sent an email to several other colleagues in their department, including their manager. The email contained an offensive 'Recipe' on 'how to make a black person.' It was written in Afrikaans. Upon receiving the email, the manager circulated it to the rest of the team, including Senwamadi.

Initial attempt to remedy the unfair discrimination suffered

Senwamadi challenged the manager about the email, but the manager claimed to be merely the messenger as he had received it from van der Westhuizen. Dissatisfied with this, Senwamadi contacted the Quality Manager at the company's regional head office to lodge a grievance.

The company conducted an enquiry and hearing into the incident. Senwamadi was not kept up to date with its progress and the actual hearing was held on his day off. It was only after he instructed an attorney to write to the company, that Senwamadi discovered that van der Westhuizen was issued with a final written warning as a consequence of sending the email and being found guilty of misuse of company property and discrimination.

Senwamadi felt the company's decision was not severe enough, as he believed the stated policy in cases of hate speech was dismissal. Nashua agreed that their policy is to dismiss employees found guilty of 'unfair discrimination by any employee against another employee solely on the grounds of race, sex or creed or the making of derogatory remarks against another employee based on such employee's race, sex or creed'. However, the branch where the Complainant worked is a franchise and so the decision in this case was left up to the Management in charge of the branch. The disciplinary hearing team claimed they had not dismissed van der Westhuizen because he had not written, but merely circulated, the email (Mail and Guardian, 2004). This is a seemingly contradictory claim, as the manager had also circulated the email yet no action had been taken against him. Similarly, van der Westhuizen had clearly been intending to make a statement; whether he authored the email or simply condoned its contents is largely irrelevant.

Taking the equality court route

Senwamadi opted to approach the South African Human Rights commission (SAHRC). SAHRC provided him with the contact details of his nearest equality court. He contacted the court and the clerk gave him the forms and information on how to proceed. Contrary to the correct procedure, no Directions Hearing was held.

After learning of the lodging of the case, the Managing Director of the company encouraged van der Westhuizen to write a letter of apology. Senwamadi felt that, in return, he was expected to drop the case. He decided to continue with it. Van der Westhuizen was named as the only Respondent.

The Respondent was represented by a lawyer and called one witness. The Complainant was unrepresented, despite being informed of his right to representation. He did not call any witnesses. The Complainant testified and was questioned by the lawyer representing the Respondent. The Respondent, who bore the onus of proof, and his witness, testified that the email was caused by a virus and had not been sent intentionally. The presiding officer found against the Respondent. The Complainant had asked for, amongst other things, R200 000 in damages. But the presiding officer Ordered instead that the Respondent pay R10 000 to the Complainant, and that a copy of the judgement be sent to the company. The issue of Semwanadi's lack of legal representation was picked up by the presiding officer and, despite the successful outcome of the case, Judgment noted that '… had [the Complainant] sought legal advice or representation, the legal representative would have noticed that the company itself and/or his Manager Mr Adriaan Engelbrecht are equally guilty of this complaint for inter alia the further sending of this email to other people, the down play of this conduct by the company, etc.'

After the hearing the parties to the case continued to work in the same place. As of the end of 2004, the company has not followed up on the issues exposed by the case in terms of diversity training or other support. Senwamadi feels victimised and that those in his workplace are punishing him for taking the case to the equality court. The Respondent did not comply with the monetary reward contained within the Order, so in June 2004, the SAHRC had to assign a lawyer to execute the judgement.

Conclusions drawn from the Early Cases

In June 2004, only a handful of cases had been concluded in equality courts.21 The three discussed here highlight the challenges facing the courts, but also areas where they will be useful in achieving the aims of the Act.

Accessibility

The Act aims to make the courts accessible. Accessibility involves a number of factors: location; public awareness; language; financial costs; and legal awareness and/or advice. Despite the fact that the courts are only partway through their roll out, early indications suggest that they are proving to be relatively accessible (although some barriers exist and accessibility is uneven). The Nashua case, which took place in the Limpopo Province, shows that in some semi-rural areas the courts are fully functional and relatively accessible. Conversely, accessibility could have been very poor in the Sliver Club case as staff in the court was unaware of the equality court's existence. Hopefully incidents such as this will decrease as both court staff and the public awareness increases. However, a visit in December 2004 to the Wynberg Magistrates' Court in the Western Cape by the editor of this paper showed that almost none of the staff was aware of the existence of the equality court.

That the evidentiary burden lies with the respondent after a prima facie case has been made is an important component of accessibility, allowing unrepresented complainants or those represented by non-legal counsel a good chance of success. In the Nashua case, Senwamadi was unrepresented yet relatively successful. According to the judgement, he believed that he did not need representation because he 'had done nothing wrong'. It is less clear whether he was offered any assistance in finding representation or if he was advised on the value of legal representation, particularly in view of the fact that he was awarded an Order substantially lower than he had claimed for. This important advice should be given to all applicants to equality courts, especially given that section 20(9) of the Act directs the state and other constitutional institutions to assist those wishing to institute proceedings.

SAHRC have risen to the challenge of assisting complainants bring cases before the equality court. In both Edgemead and Sliver Club, the complainants were assisted with legal representation by the SAHRC. In the Nashua case, SAHRC assisted the complainant by providing him with the forms and monitoring the case. After judgement in the latter case, the Commission further assisted by instructing an attorney to execute the Order. The importance of a complainant receiving such legal backing from the SAHRC cannot be over emphasised, as most people do not have the funds to instruct lawyers for cases such as these.

Other areas of accessibility are less encouraging. In the Nashua case, Senwamadi was provided with an interpreter, but during the proceedings he felt that the interpreter was not doing an adequate job and decided to speak for himself in English. For complainants who do not speak and understand a dominant language, this would have constituted a significant barrier to access.

Types of cases in which equality courts may be most useful

The Sliver Club case is encouraging in that it shows how the equality court could be used to tackle unfair discrimination cases involving private institutions. In this context 'private institutions' refers to privately owned yet publicly used spaces such as bars, shebeens, and shops, but does not include state institutions or homes, for example. According to Professor de Vos (2004), 'the courts will be most useful for cases dealing with private institutions where issues of discrimination were previously difficult to prove.' This is borne out by the statements made to the media from the club in the immediate aftermath of the incident, which denied there were racial issues involved (Oosterwyk, 2003, p.6). It is encouraging that the normative switch, with the burden of proof resting with the respondent, has made it possible for such cases to be successfully resolved in the equality courts.

It is likely that equality courts will continue to be effective forums for cases with a high media profile, such as the Edgemead and Sliver Club cases. Intense media coverage seems to put pressure on respondents to negotiate. While the innovative and creative court processes encouraged by the Act have yet to become fully established, the ability of equality courts to facilitate negotiation and swift outcomes has been demonstrated. The Edgemead case in particular, shows us how the courts can quickly and quietly bring controversial cases to conclusion, even when criminal charges were ongoing. As equality court cases become more common, it is possible that such cases will have less media coverage. Effective monitoring of whether a lack of media pressure leads to longer and more legally complex proceedings will be required. The media are also missing out on their obligation to promote the purposes and objects of the Act, in the limiting way they publicise the outcomes of the cases. In this way, they simultaneously miss the opportunity to widen the impact of the courts' decisions and understanding of the power of the courts.

Satisfaction of the complainant?

Whilst in the Sliver Club and Edgemead cases the complainants were relatively happy with the process and outcome, the opposite was true in the Nashua case. Looking at the differences between the cases, several factors may have contributed to the different levels of satisfaction. Unlike the Nashua case, the respondents in the other two cases issued unconditional apologies. In the Sliver Club case, the complainant was particularly empowered as a high achieving professional himself, assisted by an attorney from the SAHRC and a partner who is a well respected expert in equality law. Despite these factors, probably the issue that sets the Nashua case apart the most and is the root of Senwamadi's dissatisfaction, is the fact that he has been exonerated by the equality court and yet suffers from workplace victimisation in the aftermath of the incident. It is submitted that the major difference between the Sliver Club and Nashua cases is that Pillay never need return to the Club whereas there is a continuing relationship between the parties in the Nashua case. In the Edgemead case, there was no need for contact between the parties as both learners now attend different schools.

The Future

It is highly likely that equality courts will hear cases in which there will be a continuing relationship between the complainant(s) and respondent(s), for example cases between colleagues, scholars, neighbours or members of religious groups. As prejudice is the basis of equality court cases, it is important that presiding officers ensure that they do not merely address legal and financial outcomes, but also the attitudes that resulted in the incident as these may persist beyond the court's ruling. The apathetic attitude shown by the colleagues and management in the Nashua case must be effectively challenged to ensure that complainants are not further victimised or left frustrated. Possibly, the courts should make greater use of the alternative fora and the Commission for Conciliation, Mediation and Arbitration to ensure that such prejudice is challenged and the situation periodically monitored.

South Africa's history of colonialism, apartheid and patriarchy has left it with a deeply unequal society. This inequality impacts on the daily lives of citizens (and, in many cases vulnerable foreigners, including refugees, asylum seekers and undocumented migrants), as the three case studies discussed demonstrate. The Act encourages presiding officers to conduct cases in innovative and creative ways that maximise access to justice. Likewise, in making orders and remedies, presiding officers are encouraged to be innovative and place emphasis '… on remedies that improve and educate offenders, rather than merely punish them' (Bench Book, n.d., p.139).

Whilst the early cases illustrate that the Act is becoming functional, in that cases are being brought forward and successfully concluded, they also show, innovative court procedures and remedies are yet to be developed and explored by presiding officers. Equality courts are potentially an effective tool to both compensate victims of prejudice and to challenge the attitudes of offenders. In this way they can achieve both dimensions of the aims of the Act: to prevent discrimination but also to promote equality. For the courts to make a meaningful impact, public awareness and other aspects of access, such as provision of competent translation and interpretation services, as well as a focus on the challenging of attitudes of offenders in the orders and remedies handed down by presiding officers must occur.

The Department of Justice has acknowledged that their biggest task in rolling out equality courts is raising public awareness of the courts (Skosana, 2004). They can be assisted in this task by civil society and the promotion of their possible use by alternative fora. With increased numbers of cases calling before equality courts and presiding officers gaining more experience and confidence, it is hoped they will start to engage with the Act in the innovative and creative ways intended and in so doing, play their very substantial part in creating a more just and equal South Africa.

Notes:

1 This introduction updates the proposal Consolidating Citizenship and Reconciliation in the Post-Truth and Reconciliation Commission Period submitted to the Ford Foundation (2000).

2 Perpetrators of political violence had to fully disclose details of their past crimes in order to qualify for amnesty. Simply put, it was agreed that justice would be overlooked provided that the perpetrators publicly told the truth. The truth, it was hoped, would help the process of healing individual victims and the nation.

3 Theissen, G. (1997). Between Acknowledgement and Ignorance: How white South Africans have dealt with the apartheid past. Research report based on a CSVR-public opinion survey conducted in March 1996. Braamfontein: Centre for the Study of Violence and Reconciliation.

4 Dewhirst, P. & Valji, N. (2003, April) Little joy, no rainbow, victimized again. City Press.

5 Oakley-Smith, T. (2003, May). Editorial, The Star.

6 The law stated is as it stood on 1 November 2004.

7 The Constitution of the Republic of South Africa Act No 108 of 1996, as amended.

8 Section 9(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. Item 23(1) of Schedule 6: National legislation envisaged in [section] 9(4) … of the new Constitution must be enacted within three years of the date on which the new Constitution took effect. The first sections of the Act entered into force on 2 February 2000, one day before the expiry of the three-year period.

9 Section 16 of the Act.

10 The precise number is 199 732 criminal cases (Legget et al., 2003, pp.41-43).

11 These are: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth.

12 Although Regulation 563 published in the Government Gazette on 30 April 2004 contains prohibitions on discriminating against persons solely on the basis of HIV status within the Code of Conduct to guide employers' promotion of equality.

13 As relayed by Pierre de Vos (interview 10 May 2004) and Ashraf Mahomed (interview 30 March 2004).

14 Apartheid terms such as 'coloured', 'white', 'Indian' and 'African' are used in this paper because of the differential legacy of apartheid on different 'race groups', and the continuing use of these terms in contemporary South Africa. Dealing with the legacy of colonialism and apartheid, and thus 'race', is the central aim of the equality legislation, therefore, the use of apartheid terms is necessary for monitoring purposes. This should not be interpreted as uncritical application of, or support for, apartheid terminology.

15 One possible avenue of investigation would be the long-term effect of the incident and the equality court process on the school, as well as the learners and their families.

16 The altercation started outside the school but moved onto the premises as it unfolded.

17 Negotiations on the terms of reference for the audit began in late June 2004.

18 Instead of exploring and supporting the school's process of self-examination - and contextualising this within a broader social agenda of institutional transformation beyond the school alone- public comments in defence of the school tended to feed into a narrower discourse of racial polarisation. For example, the Broadcasting Complaints Commission for South Africa received a complaint of racism relating to a radio talk show featuring the victim, her mother and the Minister for Education for the Western Cape. A member of the Edgemead community argued that the community and the school had been unfairly represented during the talk show, and that the presenter had unduly criticised the alleged assaulters and repeatedly named them, rather than remaining neutral. The complaint was dismissed (Case No: 2003/53 567 Cape Talk Radio - Kieno Kammies Show – Racism; S Saunders (Complainant) v 567 Cape Talk Radio (Respondent)) but it highlights attitudes held about what constitutes racism and how it is expressed and experienced. The counter-charge of racism is often used by dominant groups and is a clear example of the dominant group's belief that their values and conduct are normative and neutral, when, of course, they are as subjective and filled with bias and group self-interest as any marginalised groups.

19 And, indeed is the first of the first seven cases to come to judgement rather than settlement.

20 As relayed by Elliot Senwamadi (interview 28 May 2004) and reported in the Mail and Guardian (2004).

21 Another early and well-publicised case involved a quadriplegic lawyer, Esthe Muller, who took the Departments of Justice and Public Works to an equality court because some courthouses do not provide wheelchair access. The court found in the complainant's favour and the matter was ostensibly completed on 24 February 2004, although various courthouses are yet to become wheelchair 'friendly' (Muller, 2004).

References

Behari, K. (2004). Justice College, in personal communication.

Bench Book for Equality Courts (n.d.). Judicial Service Commission and Magistrates Commission, Republic of South Africa. Pretoria: Equality Legislation Education and Training Unit.

Cape Argus (2003, November 07). Teen beaten by classmate in racial attack. p.1.

City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC).

Carrim, N. (2004). Advanced Certificate in Education: Human Rights and Values, University of the Witwatersrand, in personal communication.

Case No: 2003/53 567 Cape Talk Radio - Kieno Kammies Show – Racism; S Saunders (Complainant) v 567 Cape Talk Radio (Respondent).

Department of Justice and Constitutional Development: speciality areas: equality courts and legislation (available online:http://www.doj.gov.za/2004dojsite/eqact/eqc_main.html, 28/04/2005).

de Vos, P. (2004, May 10), Interview.

Equality Legislation Implementation Project, Department of Justice, September 2004.

Equality Legislation Implementation Project. Draft report on equality research (available online: http://www.doj.gov.za/2004dojsite/eqact/other%20docs/research/eqc_research_index%20and%20intro.pdf, 28/04/2005).

Equality Review Committee workshop. (2003, May 20). (available online: http://www.doj.gov.za/2004dojsite/eqact/erc/eqc_erc%20workshop_exesum% 2020%2005%202003.pdf, 28/04/2005).

iafrica.com (2003a, November 08). Pupil hit, defecated on in race attack, (available online: http://www.iafrica.com/).

iafrica.com (2003b, December 04). Edgemead case goes to equality court, (available online http://www.iafrica.com/).

Leggett, A., Louw, A., Schönteich, M. and Sekhonyane, M. (2003). Criminal justice in review 2001/2002. Monograph 88 (October). Pretoria: Institute for Security Studies.

Mabaso v Law Society of the Northern Provinces (CCT76/03 Judgement delivered May 2004).

Mahomed, A. (2004, March 30). Interview.

Mail and Guardian (2004, April 30). Court zaps racist mailer.

Muller, E. (2004). Accessing equality courts: an early user. Unpublished paper presented at Equality Court Seminar. Braamfontein: Centre for the Study of Violence and Reconciliation (29 July).

Oosterwyk, T. (2003, October 06). Racism allegation against Green Point gay bar. Cape Argus (available online: http://capeargus.co.za/index.php?fSectionId=49&fArticleId=253833, 28/04/2005).

Potgieter, F. (2003, December 04). 'Race case' tests equity court. Usenet. http://www.usenet.com/

Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000.

Regulation 563 published in the Government Gazette on 30 April 2004.

Roelf, W. (2003, November 10). Counselling on the cards for alleged victim. Independent Online (http://www.iol.co.za/).

SABC News (2003, November 07). Black pupil humiliated in 'racist attack'.

SABC News (2004, February 10). Equality Court makes it first ruling.

Schronen, J. and Bailey, C. (2003, November 07). Teen beaten by classmate in racial attack. Cape Argus, p. 1.

Senwamadi, E. (2004, May 28). Interview.

Skosana, R. (2004). Rolling out equality courts. Unpublished paper presented at Equality Court Seminar. Braamfontein: Centre for the Study of Violence and Reconciliation (29 July).

Swartz, R. (2003, November 13). Investigation into incident at Edgemead high School, Media Release. Statement by Ron Swartz, Head of Education in the Western Cape.

The Constitution of the Republic of South Africa Act No 108 of 1996.

Versveld, V. (2003). Edgemead High fights back. Media release, School Governing Body (November 12). (available online: http://ehsweb.ehs.wcape.school.za/racism/media_statement.html).

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