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RACISM AND LAW: IMPLEMENTATION OF THE RIGHT

TO EQUALITY IN SOUTH AFRICA

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du Plessis Racism and law: implementation of the right to equality in South Africa

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RACISM AND LAW: IMPLEMENTATION OF THE RIGHT TO

EQUALITY IN SOUTH AFRICA

Pierre du Plessis1

University of Johannesburg South Africa

ABSTRACT

Constitutional supremacy, judicial review, a justiciable Bill of Rights, and most

importantly, democratic elections in which all adult South African’s were allowed to vote,

meant the end of legally sanctioned segregation and racism. The official end to the

sanctioning of racially discriminatory laws and policies did not mean that racism and racial

discrimination died a quiet and sudden death. The legacy that the new South Africa

inherited was that of a racialist and racist division of the population, both in law and society.

This article aims to assess whether Legislation has the potential of contributing

meaningfully to the creation of a non-racist society and to restore the common humanity of

all South Africans insofar as these are threatened by racist behaviour and attitudes.

Keywords: racism, equality, las, legislation, constitution, discrimination

INTRODUCTION

In the eyes of the law, all South Africans, irrespective of race, ethnicity or colour, are equal.

This means that government through its action and in law, may not infringe upon the rights

of individuals or any of the prohibited grounds provided for in Section 9 of the

Constitution2 and that government is alleged of provided the attainment of equality in South

African society.

Central to this system of values are “human dignity, the achievement of equality and the

advancement of human rights and freedoms….” (Section 1(a) of the Constitution, 1996).3

The Constitution reinforces this commitment to equality and human dignity by spelling out

an aversion to discrimination on the basis of race and gender. This is further elaborated

upon in the Bill of Rights.4

In support of these commitments, South Africa ratified the International Covenant on Civil

and Political Rights and the international Convention on the Elimination of All Forms of

Racial Discrimination. The instruments of accession were deposited with the United

Nations in New York on 10 December 1998, to mark the 50th anniversary of the Universal

Declaration of Human Rights. The Department of Education has translated these ideals into

policy and challenges which have been incorporated in the National Action Plan for the

Promotion and Protection of human Rights.

1 Also Raj Mestry. 2 The Constitution of the Republic of South Africa, was adopted on 8 May 1996. 3 Constitution of South Africa, Act 108 of 1996. 4 Bill of Rights, Chapter 2 of the Constitution.

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And yet at the same time as these laudable developments are underway, the situation in

schools is far from complementary. In fact little progress has been made to ensure an end

to racial discrimination and prejudice in schools. Schools continue to be characterised by

racial separation and discrimination. Efforts and racial integration have not achieved the

desired results, in part because learners approach school with the prejudices imbued in their

home environments and the schools have no mechanism to challenge and stimulate the

unlearning of ingrained prejudices, as well as transform the minds of learners.

Educators exhibit little or no commitment to constructing a learning environment free from

discrimination and prejudice. Too many prefer to deny the existence of racism or presume

a superficial tolerance.

In a recent event earlier this year (2016), a private school, the Curro Foundation School,

separated learners in classes according to race. Investigations revealed that the school split

learners because white parents threatened to remove their children. The majority of parents

are predominantly white and they wanted to withdraw their children out of the school. The

white learners were placed in classes that were taught in Afrikaans while the black learners

were placed in English speaking classes. Although the school initially denied the

allegations they then consequently apologised for their actions. The out-dated methods of

schooling had already sowed seeds of discontent among the South African sphere, evoking

responses such as “I’ve hears of keeping minority groups together to protect their culture

before. Wasn’t it called apartheid?”

In May 2013, learners from a combined school in Bloemfontein alleged that staff called

them racist derogatory and belittling names such as baboons, monkeys and little black

bitches”. To this day, no appropriate measures have been taken against the allegations. The

school was only encouraged to put in place policies that counter racism which meant that

the same racist teachers had to put in place policies that would make their racist attitude

less controversial.

This article will consider the provisions of the legislation as they pertain to complaints

involving racism as well as the application of these provisions by selected equality courts.

It does so within the broader legal framework established by international law and by the

Constitution. 5 - kan nie sien waar ek footnote 4 moet sit nie.

DEFINITION OF RACISM

Racism is a term more commonly used than the term racialism and the two words are often

used interchangeably in everyday speech and in the media. Racialism is the belief that there

are heritable characteristics, possessed by members of our species, which allow us to divide

them into a small set of races, in such a way that all the members of these races share certain

traits and tendencies with each other that they do not share with members of any other race.

People subscribing to racialist beliefs base their racial classifications on physical attributes

such as skin colour, hair texture, etc.

Racism is a belief in the superiority of one race in relation to other races. Beliefs about

inferiority or superiority are beliefs about (a) intellectual; (b) physical; (c) aesthetical; (d)

moral or (e) emotional inferiority/superiority.

5 Constitution of South Africa, Section 9 (4)

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There is consensus among most educated and benevolent people that racism is wrong,

racists are immoral and that racist actions ought to be punished.6 From this it follows that

racism should be eliminated or that the elimination thereof should be the ideal. This ideal

is supported in this article.

PROVISIONS OF THE EQUALITY ACT

Section 9(4)7 of the Constitution requires the enactment of legislation to give effect to the

constitutional commitment to equality and non-discrimination. This legislation has taken

the form of the Promotion of Equality and Prevention of unfair Discrimination Act (the

Equality Act). The article aims to assess whether legislation has the potential to contribute

meaningfully to the creation of an equalitarian society and to restore the common humanity

of all South Africans insofar as these are threatened by racist behaviour and attitudes.

Therefore the meaning of transformative constitutionalism as envisioned in the

Constitution is considered, the background to the drafting of the Equality Act and the

specific provisions of the Equality Act that are relevant for complaints of racism.8 (Kruger,

2008). One must remember that the Equality Act does not operate in a legal vacuum, and

for this reason the article will consider comparable common law and statutory provisions

which may be appropriate in complaints relating to racist behaviour.

Under the heading “National Unity and Reconciliation”, the post amble to the interim

Constitution introduced the metaphor of itself as a bridge.

“This Constitution provides a historic bridge between the past of a deeply divided society

characterised by strife, conflict, untold suffering and injustice, and a future founded on the

recognition of human rights, democracy and peaceful co-existence and development of

opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.

This famous metaphor describing the interim Constitution as a bridge was developed in

1994 in an article by Etienne Mureink in the “South African Journal on Human Rights.”9

His interpretation of the metaphor portrayed the Bill of Rights as the main strut in the

constitutional bridge which was to facilitate change from a culture of authority under

apartheid to a culture of justification required in terms of the interim Constitution.10 In the

new dispensation, persuasion rather than coercion was to inform the exercise of power. The

interim Constitution was thus not only a transitional constitution set to guide political

change,11 but also a transformative constitution aimed at fundamental restructuring of

society and its institutions.12 The Constitutional text can be interpreted to espouse a

commitment to an “empowered” model of democracy in which social change of the deeply

divided and unequal South African society is of paramount importance.13

6 Arthur, J. 2007, Race, Equality and the Burdens of History. New York : Cambridge University Press 7 Constitution of South Africa, Section 9 (4) 8 Kruger, R. 2008, Racism and Law : Implementing the Right to Equality in Selected SA Courts 9 E. Mureink. A bridge to where? Introducing the Interim Bill of Rights (1994) 10 SAJHR 31 10 Mureink 32. For a criticism of this linear view of change see Van der Walt (2001) 59-60. On the transformative role

to be played by a Bill of Rights see also A. Sachs “Towards a Bill of Rights in a Democratic South Africa (1990) 6

SAJHR 1 at 4ff 11 The interim Constitution contained Constitutional Principles which provided the blueprint for the drafting of the final

Constitution (Schedule 4) 12 L. Lessig. Code and other Laws from Cyberspace (1999) 13 Klare is of the view that the Constitution is “post-liberal” in nature. The post-liberal view encapsulates an

“empowered” model of democracy (152) which emphasises the social role of the Constitution in transformation (153)

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Constitutional democracy in South Africa requires a commitment to transformative

constitutionalism which, in the words of Karl Klare14 is:

a long-term project of constitutional enactment, interpretation and enforcement

committed (not in isolation, but in a historical context of conclusive political

developments) to transforming a country’s political and social institutions and power

relationships in a democratic participatory and equalitarian direction. Transformative

constitutionalism connotes an, enterprise of inducing large-scale social change through

non-violent political processes grounded in law.

The promise of equality, freedom and human dignity would be meaningless without the

delivery of social justice.15 The repeal of apartheid legislation alone cannot restore

humanity or bring about equality. The first aspect of the fundamental change mandated by

the Constitution entails the improvement of the socio-economic well-being of the many

disadvantaged South Africans whose interests were not protected under colonialism and

apartheid.16

The second aspect of the transformation is that if changing the behaviour of South African’s

insofar as this is patterned on the racist policies and ideas of the past and manifests itself in

its different forms of behaviour which undermines the fundamental dignity of people.17

Constitutional commitment to the eradication of inequality and unfair discrimination is

commonly couched in general terms. Legislation aiming to realise the goals of equality

generally refines the constitutional commitment to equality by providing specific formulas

to deal with unfair discrimination.18

The current investigation ponders this point: does the Equality Act represent a

constitutionally compatible, principled yet refined, approach to equality and non-

discrimination that is sufficiently responsive to ever changing forms of behaviour that

undermine the constitutional commitment to equality?

THE EQUALITY ACT

The Equality Act is boldly committed to the transformation of South African society. The

Preamble records this clearly in setting out the basis and goals of transformation that the

legislation pursues. The Preamble casts the scope of the Act which in relation to the

transformation it wishes to bring about. The provisions of the Act are to address systematic

inequalities and unfair discrimination that manifest themselves in the institutions of society

and the practices and attitudes of South Africans insofar as these undermine the aspirations

of constitutional democracy.19

These constitutional aspirations are mentioned explicitly: “human dignity, equality,

freedom, and social justice are a united, non-racial and non-sexist society where all may

14 Klare 150. The author also notes that transformation requires a change in the formalistic legal culture of South Africa

(167) 15 P.N. Langa. “Equality Provisions of the South African Constitution (2001) 54 SMULR 2101 at 20102 16 Langa 353 and Klare 167 focus in a change in legal culture demanded by the Constitution 17 P.N. Langa 18 A.W. Heringa. “Standards of Review for Discrimination: The Scope of Review by the Courts in T Loenen and PR

Rodrigues (eds). Non-Discrimination Law: Comparative Perspectives (1999). Martinus Niijhoff Publishers: The

Hague 25 at 32-33 19 GN 49 in GG 25065 if 13 June 2003. This notice brought sections 4(1), 7-23, 3, 31 (with the exception of subsection

(7)) and 34(2) into operation

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flourish. The Preamble also records the international obligations that South Africa has

undertaken in respect of the promotion of equality and prevention of unfair discrimination.

Specific reference is made to the obligation’s flowing from the Convention on the

Elimination of All Forms of Discrimination Against Women and the Convention on the

Elimination of All Forms of Racial Discrimination.20

The society that the Act envisages for South Africans is “a democratic society, united in its

diversity, marked by human relations that are caring and compassionate and guided by the

principles of equality, fairness, equity, social progress, justice, human dignity and

freedom.”21 In confronting racism and unfair racial discrimination, a balance should be

struck between extending the recognition of differenced and showing equal concern and

respect for all people through the recognition of the fundamental equal dignity of all people.

With the transformative goals set out in the Preamble, in addition, the Act contains a section

with the heading “Objects of Act”.22 The objects set out in this section echo the

transformative ideals set out in the Preamble: the Act is “to give effect to the letter and the

spirit of the Constitution”.23 The objects of the Act includes the provision of measures to

“facilitate the eradication of unfair discrimination, hate speech and harassment, particularly

on the grounds of race, gender and disability,24 procedures to determine the circumstances

under which discrimination is unfair,25 to provide remedies to victims of unfair

discrimination, hate speech, harassment and persons whose right to equality has been

infringed.26 Other objects related to the promotion of equality27 and the compliance with

international law obligations28. The object of the Act as set out in this section has to be

taken into account when the Act is applied.29

Complaints in terms of the Equality Act “must be considered within the four corners of the

Act”.30 The Equality Act was enacted to give effect to the constitutional right to equality

and was not meant to be a re-statement of Section 9.31 As long as the Act does not decrease

the protection afforded by section 9 or infringe another right, a difference between the Act

and section 9 does not violence the Constitution.32 A brief scrutiny of the reactive

provisions contained in Chapter 2 of the Act shows that the Act goes beyond Section 9 in

its prohibition of behaviour that offend the right to equality. We will consider the aspects

to determine their scope and constitutionality.

UNFAIR DISCRIMINATION

The Equality Act contains a general prohibition of unfair discrimination33 which has to be

understood with reference to its definitions of equality and discrimination. Equality is

20 United nation’s International Convention on the Elimination of All Forms of Racial Discrimination. New York; 7

March 1966 21 Preamble of the Equality Act 22 Preamble of the Equality Act, Section 2 23 Preamble of the Equality Act, Section 2 (b) 24 Preamble of the Equality Act, Section 2 (c) 25 Preamble of the Equality Act, Section 2 (d) 26 Preamble of the Equality Act, Section 2 (f) 27 Preamble of the Equality Act, Section 2 (c & f) 28 Preamble of the Equality Act, Section 2 (h) 29 Preamble of the Equality Act, Section 3 (1) (b) 30 MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) para 40 31 MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) para 43 32 Ibid 33 Section 6

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defined to include “the full and equal enjoyment of rights and freedoms as contemplated in

the Constitution and includes de jure and de facto equality and also equality in terms of

outcome”.34

Discrimination in terms of the Equality Act “means 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.35 In MEC for Education Kwazulu-

Natal v Pillay36, the Constitutional (unanimously on this point) found it unnecessary to

decide whether this definition of discrimination requires a comparator, i.e. whether

discrimination as prohibited in the Act is always relational.

The Act prohibits unfair discrimination. Section 14, which is “not a model of clarity”,37

provides for a complex list of factors that has to be considered when determining the

fairness or unfairness of discrimination.38 The action correctly excludes affirmative action

measure from being viewed as unfair.39 Section 14 (2) provides the factors to be considered

for the determination of fairness: the context, the factors listed in section 14 (4) and

“whether the discrimination reasonably and justifiably differentiates between persons

according to objectively determinable criteria, intrinsic to the activity concerned.40 These

considerations in the determination of fairness are loosely based on the factors which the

Constitutional Court identified as determinative of the unfairness of discrimination in

Harkson,41 bundled with reasonableness considerations as provided for in Section 36 of the

Constitution,42 while a consideration of unfair discrimination in terms of the Equality Act

must take the formulation of equality and non-discrimination in the Act into

consideration.43

Apart from these general provisions regarding unfair discrimination, Section 7 deals

specifically with the prohibition of unfair discrimination on the basis of race. This section

contains a list that starts by classifying the propagation of racial superiority or inferiority

of dissemination of such ideas and the incitement or participation in racial violence as racial

discrimination.44 Kok45 states that this subsection:

would fit more comfortably into section 10 (dealing with hate speech). Is it really

‘discrimination’ to air the view that one race is better than another, or to encourage

racial violence? The other examples listed in section 7 of what would constitute ‘unfair’

all boil down to the withholding of benefits of the imposing of disadvantages.

Other instances of unfair racial discrimination listed in Section 7 are the engagement in

activities that promote (or are intended to promote) racial exclusivity,46 excluding members

34 Section 1 of Equality Act 35 Section 1 of Equality Act 36 MEC for Education: Kwazulu-Natal v Pillay 2008(1) SA 474 (CC) para 44 per Langa, C.J. and para 164 per O’Regan,

J. 37 MEC for Education: Kwazulu-Natal v Pillay 2008(1) SA 474 (CC) para 168 38 Section 14(2) urges the presiding officer to take the context, the list of factors in SS (3) and whether the discrimination

reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to

the activity concerned into the account when determining fairness 39 Section 14 (1), Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) para 28 40 Section 14 (1) 41 Harkson v Lane No 1998 (1) SA 300 (CC) para 51 42 See MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) para 70 43 MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) para 40 44 Section 7(a) of Equality Act 45 Kok, 297. The Promotion of Equality and Prevention of unfair Discrimination Act: Why the controversy? (2001) 9

TSAR 46 Section 7 (b)

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of a certain race group under a seemingly legitimate rule or practice but which aims at the

retention of exclusive control by a particular race group,47 the provision of inferior services

to a particular race group48 and the denial of access to opportunities, including access to

services or contracts for delivering services or failing to accommodate the needs of such

persons.49

What is the purpose of this list of incidents that would constitute unfair racial

discrimination? The list of instances is provided as examples of unfair discrimination on

the basis of race. The list plays a similar educative role to the illustrative list of unfair

practices in certain sectors as found in Section 29.50 A complaint still has to provide prima facie proof of the discrimination before the onus shifts to the respondent to prove that the

discrimination did not take place or that the discrimination was not on one of the prohibited

grounds.

HATE SPEECH

Rules regulating hate speech are at the centre of the clash that arises between the right to

freedom of expression and the right to equality in democratic states.51

It is perhaps for this reason that many commentators view hate speech as a form of (unfair)

discrimination which violates the right to equality. Hate speech impairs the fundamental

dignity of a person, in both the subjective and objective senses. The effect of hate speech -

the impairment of dignity is similar to that of unfair discrimination as identified by the

Constitutional Court. The fact that the Equality Act deals with unfair discrimination and

hate speech as separate concepts means that the Act recognises a distinction between these

concepts, propagation of racial superiority or inferiority meets a further requirement,

namely that it is unfair within the framework provided by Section 14. Insofar as ordinary

hate speech is concerned, the Act does not require that its unfairness be proven.52

A further indication of the recognition of the distinction between the similarity of hate

speech and unfair discrimination in the Act, is to be found in Section 12 of the Act, which

prohibits the dissemination, broadcasting, publication or display of any advertisement or

notice that could reasonably be construed or understood to demonstrate a clear intention to

discriminate unfairly against any person subject to the proviso53 which also applies to

Section 10.

The inclusion of this section, completed the full frontal confrontation of behaviour that

undermines the dignity interest that is protected by the equality right: the Act outlaws

conduct that amounts to unfair discrimination or harassment, it prohibits the publication of

notices or advertisements which could reasonably be construed to demonstrate an intention

to discriminate unfairly (Section 12) and it also prohibits speech that is harmful or hurtful

(Section 10).

47 Section 7 (c) 48 Section 7 (d) 49 Section 7 (e) 50 Albertyn, Goldblatt and Roederer 104. The list in Section 29 plays a further role in that it provides an initial working

list for the Equality Review Committee 51 Neisser 336 52 Section 15 53 Section 12 also contains a specific reference to Section 16 of the Constitution

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The Constitution clearly excludes hate speech from the protection afforded to free

expression. Section 16(2)(c) excludes the "advocacy of hatred that is based on race

ethnicity, gender or religion, and that constitutes incitement to cause harm" from the

constitutional protection afforded of free expression.54

The requirements for the exclusion of expression from the protection of Section 16(1) on

the basis of it constituting hate speech are thus two-fold:

the expression amount to the advocacy of hatred based on race, ethnicity, gender or

religion and;

that must constitute incitement to cause harm.

Any regulation of hate speech that goes beyond these two requirements must then fall

within the purview of a Section 36(1) limitation of the right protected in Section 16(1).55

Section 10 of the Equality Act outlaws hate speech. In doing so it sets out two requirements:

(a) the publication, propagation, advocating, or communication of words based on a

prohibited ground.

(b) that could reasonably be construed to demonstrate a clear intention to be hurtful,

harmful or to incite harm or to promote or propagate hatred is prohibited.56

It has to be determined whether the inclusion of further prohibited grounds in relation to

hate speech is a justifiable limitation of free expression as contemplated in Section

16(1).57 Section 16(2) prohibits hate speech on the basis of race and race is included as one

of the listed grounds in the Equality Act on the basis of which hate speech is prohibited.

The historical significance of race as a ground is thus acknowledged by the

Constitution and the Equality Act.

Section 16(2)(c) prohibits the advocacy of hatred. The word "hatred" is explained in the

Oxford English Dictionary to mean '[t] he condition or state of relations in which one person

hates another; the emotion or feeling of hate; active dislike, detestation, enmity, ill-will,

malevolence'.58

In Keegsha59 the Canadian Supreme Court, per Dickson, C.J. for the majority, explained

the meaning of hatred in the context of the hate speech prohibition in the Criminal Code of

Canada as follows:60

Noting the purpose of S.319(2) in my opinion the term hatred connotes emotion of an

intense and extreme nature that is clearly associated with vilification and detestation. as

Cory, J.A. stated in R v Andrews, supra, at p 179:

Hatred is not a word of casual connotation. To promote hatred is to instil detestation,

enmity, ill-will and malevolence in another. Clearly an expression must go a long way

before it qualifies within the definition in [S.319(2)].

54 Kruger, 2008. Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 55 Islamic Unity Convention v independent Broadcasting Authority 2002 (4) SA (CC) para 34 56 Subsection 2 of Section 10 provides for possible criminal prosecution of such conduct 57 See Teichner 379 58 Oxford English Dictionary 2ed (1989). Oxford: Oxford University Press 59 R v Keegstra [1990] 3 SCR 697 60 R v Keegstra [1990] 3 SCR 697 t 777

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Harm, in the context of Section 16(2) could either be interpreted restrictively or widely. A

restrictive interpretation would limit "harm" in this context to physical harm.61 This

approach confines the exclusion created by the Constitution significantly. In line with the

approach of the Canadian Supreme Court in Keegstra62 and the convincing arguments of

Critical Race Theory scholars.

The hurdle Section 16(2)(c) poses for Section 10 of the Equality Act does not only relate

to the different forms of harm flowing from hate speech. A more serious challenge is posed

by the second requirement for constitutional exclusion from freedom of expression, namely

that the advocacy of hatred must constitute an incitement to cause harm. Currie & De

Waal63 propose a reading of Section 16(2)(c) of the Constitution to exclude protection for

speech which in itself is intended to cause harm and note merely speech which is intended

to incite an audience to cause harm to a target group.

Such a reading will make a consideration of the limitation analysis unnecessary because

the constitutional provision will be read to align with the broader provision contained in

the Equality Act.

Section 10 of the Equality Act goes beyond the constitutional exclusion created in Section

16(2)(c) in a number of ways: it includes more prohibited grounds in relation to hate

speech than Section 16(2)(c) allows for, it prohibits the mere conveyance of hateful

words; it provides for the prohibition of harm that results from the utterance of words and

does not restrict the prohibition to advocacy of hatred that constituted incitement to cause

harm and, lastly it provides for the consideration of the probable views of a reasonable

person of the effects of the uttered words. Where these constitute a limitation of the right

to freedom of expression, the have to be subjected to the limitation analysis or construed

alternatively to ensure constitutional compatibility.

Teichner64 engages in a detailed limitation analysis setting out and discussing each of the

Section 36 factors. Ultimately the limitation analysis required proportionality between

freedom of expression on the one hand and equality and dignity on the other. The latter

two, whether considered as rights or values, justify the inclusion of hate speech

provisions in the Act65 but it is the extent of the limitation on freedom of expression that

complicates the analysis. Racist hate speech defies the constitutional ideals of dignity and

equality and serves no legitimate constitutional purpose.

HARASSMENT

The Equality Act addresses a further form of conduct or speech that undermines

fundamental dignity. Section 11 specifies in a single sentence that no person may subject

any person to harassment. The definitions section of the Act contains a comprehensive

definition of harassment.66 It provides that:

61 Teichner 355-356 and the viewpoints discussed there 62 R v Keegstra [1990] 3 SCR 697 at 746-747 63 Currie and de Waal (1002) 375 64 Teichner 359ff. The Hate Speech Provisions of the promotion of Equality and Prevention of Discrimination Act 4 of

2000 65 See Kok 300. Promotion of Equality and Prevention of unfair Discrimination Act : Why the controversy? (2001) 9

TSAR 66 Section 11 of the Equality Act

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harassment means unwanted conduct which is persistent or serious and demeans,

humiliates or creates a hostile or intimidating environment or is calculated to induce

submission by actual or threatened adverse consequences and which relate to –

sex, gender or sexual orientation, or

a person's membership or presumed membership of a group identified by

one or more of the prohibited grounds or a characteristic associated with

such group.

This form of harassment viewed as discrimination within the scope of Title VII of the Civil

Rights Act of the United States of America, gained international prominence in the second

half of the previous century. The South Africa Employment Equity Act (EEA)67 follows

the American example by prohibiting harassment in a form of unfair discrimination.68 In

the context of South African labour law, the legislature has spoken clearly: harassment on

a prohibited ground is a form of unfair discrimination and, in order to succeed with a claim

against an employer on this basis, the requirement of the EEA must be met. The Equality

Act is different: the legislative choice exercised in this instance distinguishes harassment

from unfair discrimination outside the workplace. While the similarity between harassment

and unfair discrimination is not denied, the Equality Act clearly views harassment as a

social ill that exists alongside unfair discrimination.69

A serious single incident of harassment will however also satisfy the requirements of the

Equality Act.70

This approach taken by the drafters of the legislation echoes the approach taken by the

Labour Court in the case Christian v Collier Properties71 where the Court held that a

serious singe incident of sexual harassment resulting in the dismissal of the complainant

justified compensation for both the unfair dismissal and the breach of the EEA insofar as

the sexual harassment was concerned.

The definition of harassment set out in the Equality Act gives priority to the grounds of sex,

gender and sexual orientation because of the prevalence of these forms of harassment. But

harassment based on the grounds, such as race for example, is also outlawed in terms of the

definition and is not less serious than sexual harassment.

The purpose of the Equality Act is to facilitate the transformation of a deeply unequal

society in an egalitarian direction by addressing attitudes, practices and systematic

inequalities. When racism is involved, the question arises as to whether the Act, given its

provisions is capable of combating racist behaviour effectively.

THE ACT AND EDUCATION

Institutionalised racism in our education system is confidence-killing and soul-destroying.

Twenty two years of the end of Apartheid, our schools still breed white superiority and

back inferiority. The Human Right Commission (HRC) found a teacher, guilty of racism

and hate speech, when the teacher called his black students monkeys, displayed the old

67 Act 55 of 1998 68 Section 6(3). The wisdom of this provision has been questioned : Grogan 129; Garbers 375. But see C. Cooper

“Harassment on the Basis of Sex and Gender: A Form of Unfair Discrimination” (2002) 23 IJL at 21ff 69 Kruger, R. 2009. Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 70 Christian v Colliers properties [2005] JOL 13888 (LC) 71 Ibid

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South African flag and put pictures on his classroom walls that depicted black people with

ape-like faces.

The nature of the racism at the above-mentioned school is only possible because of the

broader culture that supports it. The school points to a deeper problem of institutionalised

racism within our schools. Being outraged at one racist school will not shift the structural

problem, which is that our schools were designed to be thus. We know that sending black

students into white communities and providing more subsidies to poor township schools

has done nothing to change the intended design of schools on South Africa. Our model of

education efforts that have gone into revising curriculum and trying to create a single school

system - has not changed much since 1994.

The experience of multi-culturism has been on the terms of white schools, in their

neighbourhoods, with their teachers, using their cultural base as a starting point for learning

they have benefitted from "diversity" because the system as a whole geared towards them

even as the presence of blacks in their schools has allowed to participate in a "reconciled"

system.

We have accepted theoretically, separate can be equal, but we seem not to have provided

evidence to back it up. Work needs to be done in this regard, but we also know that mixed

schools are not great places for black kids in the new South Africa.

As the example of the school demonstrated, our school system remains true to its original

purpose.

The Free State racism case and data from studies point to the same evidence. Access to

education within schools is a grossly unequal as access to education across schools.

In another recent issue, a private school has been accused of assigning learners to classes

based on their race. The justification of needing to enable learners to maintain their cultures

are exactly the kind of arguments put forward that apartheid is still alive.

A month ago the Progressive Professionals Forum (PPF) has noted with utter dismay the

institutionalisation of double standards and racism by the mainstream media, corporates

and academic institutions.

South Africans should be taught at a very young age to despise racism. To achieve this, the

department of education should ensure that the curriculum taught in our schools has

extensive content that deals with social cohesion and racism. As we deal with racism we

must always remember that our Freedom Charter decreed that South Africa belong to all

who live in it.

While there are indeed drafting issues and poorly formulated sections, the underlying

purpose of the Equality Act has meant in view of our racist and racialist past. Law has a

role to play in the facilitation of social change, but all hopes for change cannot be pinned

on the law. Insofar as racist behaviour is concerned, the Equality Act concerns itself with

the different manifestations of racist behaviour. Unfair racial discrimination, racial hate

speech, the dissemination and publication of information that discriminates unfairly on the

basis of race are prohibited and racial harassment is similarly outlawed.