The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Court-driven or Legislature-driven Societal Transformation?

• Jurisdiction: South Africa
• Date: 27 May 2019
• Pages: 122-142
• Author: Anton Kok
• Published date: 27 May 2019

122

THE PROMOTION OF EQUALITY AND

PREVENTION OF UNFAIR DISCRIMINATION

ACT 4 OF 2000: COURT-DRIVEN OR

LEGISLATURE-DRIVEN SOCIETAL

TRANSFORMATION?

Anton Kok

BComm LLB LLM LLD

Senior Lecturer, Faculty of Law, University of Pretoria*

1  Introduction

In this article it is argued th at “the law” is a limited instr ument in effecting

social transformation, regardless of which legal institution, namely Parliament

or the courts, is utilised to drive such a project. This arg ument is present ed

within the contex t of the coming into effec t of the Promotion of Equalit y and

Prevention of Unfair Discrimi nation Act (the Act),1 which was arguably put

in plac e to effect large-scale so cietal transformation i n South Af rica.2 This

article is not pr imarily concerned with t he question whether the law ought to

be used to transform a society, but rather whether it can b ring about change,

and how it can be used to achieve such lofty ai ms.

The transformat ory features of the Act are briey analysed, followed by an

exposition of the debate, bet ween author s who argue (sometimes i mplicitly)

for either legislation- driven or court-d riven progra mmes of social change.

It is then argued t hat one has to accept that, for the ti me being at least, a

court-dr iven programme of social change will not achieve the desire d results.

Lamentably, a Parliament-driven programme would probably not succe ed

either.3

In conclusion the approach adopted by the South Afr ican Parliament to

effect societal transformation when it drafted the Act is considered. It is

suggested that an inter-institutional dia logue should be initiated between the

executive branch (concretised as the Department of Justice and Constitutional

* This ar ticle is based on p arts of draf t chapters of my d octoral thesis , titled “A socio-legal analysis of the

Promotion of Equ ality and Preven tion of Unfair Discr imination Act 4 of 20 00”.

1 4 of 2000.

2 See the discu ssion in para 2 below.

3 Eg cf C hemerinsky “Can Cou rts Make a Differ ence?” in Dev ins & Do uglas (eds) Red efining E quality

(1998) 191 192: “The failure to improve economic cir cumstances for Afr ican Americans obviousl y

reflect s inadequ acies not just of c ourts bu t also, a nd perhaps even more signifi cantly, of leg islatures”.

Komesar Law’s Limit s: The Rule of Law an d the Supply an d Demand of Right s (2001) argues that cou rts

are n eeded mo st when alternat ive decision -making bodies such as those driving the political process

are func tioning poorly. Cou rts, politi cal processes, markets and i nformal com munities all function well

when the number of people affe cted are small and the decision to be ma de is not complex. However, when

numbers and complexit y increas e, all the se instit utions’ abilit ies decreas e. Also se e Koopmans Courts

and Polit ical Instit utions (2003) 262: “If m any citize ns want society cha nged… the judiciary can help

them as litt le as the political in stitutions, p ossibly less so”.

(2008) 19 Stell LR 122

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THE EQUALITY ACT AND TRANSFORMATION 123

Development), the legislative branch, the judicial branch (concretised as the

equality cour ts) and civil society, in order to fu rther societal transformat ion.

2   A brief analysis of the transformatory ideals expressed in the Act

Anti-discr imination legislation could have a number of purposes:

(a) Parliament may wish to se nd a strong moral message that it views discrimi-

nation as a social evil, a message that necessarily follows the enactment of

law. The legislature may regard such symbolic commit ment to combating

discrimi nation as sufcient.4

(b) The goal of an anti-discrimination Act could be to establish forums where dis-

crimination complaints may be aired and resolved.5 This goal need not move

much beyond a symbolic commitment: Such tribunals may not be properly

resourced, or little publicity may be given to their existence, or to favourable

outcomes for plaintiffs.6 At its most idealistic, the legislature may envisage

that these forums will hear a large number of (individual) discrimination

complaints and will resolve the complaints in favour of the plaintiffs.7

(c) The goal could be to achieve a thorough readjustment in i ncome distribu-

tion and une mployment rates of va rious disadvantaged groups, identied

by for example race, sex or gender, sexual orientat ion, and HIV status, so

that these gu res become proportionately equivalent to the most privi-

leged group (usually white, heterosexu al males).

(d) At its most ambitious and idealistic, the legislat ure may wish to reach

into the hearts, minds and homes of its subjects, and affect fundamental

changes in basic social relationsh ips.8

4 Lustgarten “ Racial Inequality and the Limits of the Law” 1986 Mo d L Rev 68 84-85; Lac ey “Legislation

Against Sex Discri mination: Q uestions f rom a Feminist Perspective” 1987 J Law & Soc 411 419-420;

McCrudden “Regulating Discrim ination: Advice to a Legislator on Problems Regarding the Enforcement of

Anti-Discrimi nation Law and Strategies to O vercome Them” in Loenen & Rodrigues (eds) Non-d iscrimi-

nation Law: Compa rative Perspectives (1999) 295 297. Also cf AIDS Law Project (ALP) “Submission on

the Act to the Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women

and Joint Monitoring Comm ittee on the Improvement of Qualit y of Life and the Status of Children, Youth

and Pers ons with Disabilities, 22 Septemb er 2006” 12 htt p://www.pmg.org.za/viewminute.php?id=8349

(accessed 15 May 2007): “Explicit prote ction [of HIV/AIDS statu s] ... would also ca rry symbolic impor-

tance. It would give public and legislative recognition to the fact t hat such discrimination is a social ill t hat

affects a large – albeit vulnerable – section of our popul ation”. De Vos “Same-sex Marriage, the Right to

Equality and t he South African Const itution” 1996 SAPL 355 357 states that “some lesbians a nd gay men

... base their argume nts [relating to the rig ht to mar ry someone of the same sex] on the need for public

legitimation of their relationships” (my emphasis). De Vos “On the Legal Construct ion of Gay and Lesbian

Identity and South Afr ica’s Transitional Constitut ion” 1996 SAJHR 265 290 argues that “especially for the

historically disemp owered, the ‘conferring’ of rig hts is symbolic of all the de nied aspects of their hu man-

ity”. He goes on to quote a black drag queen at the 1994 gay pride march in Johannesburg: “Darling, it means

sweet motherf uck-all. You can rape me, rob me – what am I going to do whe n you attack me? Wave the

Constitution in you r face? I’m just a nobody black queen ... But you know what? Ever since I heard about

the Constitution, I feel free insid e” (my emphasis).

5 Cf Joachi m “Reform of the Ontar io Human R ights Comm ission” 1999 Can J ALP 51 52; Chemerinsk y

Can Courts M ake a Differenc e? 193.

6 Bailey & Devereux “T he Opera tion of A nti-Discrim ination L aws in Australia” in Kinley (ed) Human

Rights in Austr alian Law: Principl es, Practice and Po tential (1998) 292 303.

7 Lustgart en “Racial Inequalit y, Public Policy and the Law: Where Are We Going?” in Hepple & Szyszczak

(eds) Discrimin ation: The Limit s of Law (1992) 455 455-457 describ es this goal as the “just tre atment of

individua ls”.

8 Gutto Equalit y and Non-Discrim ination in South Afri ca: The Political Economy of Law an d Law Making

(2001) 7.

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