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Equality courts at risk of becoming white elephants

On June 16 — almost unnoticed — the Promotion of Equality and Prevention of Unfair Discrimination Amendment Act of 2002 became law.

The Act created equality courts, where ordinary people who believe they are victims of unfair discrimination can have their cases heard before a magistrate.

The Act provides for 16 remedies, including the payment of damages “for proven financial loss, of impairment of dignity, pain and suffering or emotional and psychological suffering” as a result of being unfairly discriminated against. The equality court can also order an unconditional apology.

It would be easy — and fair — to criticise the government for taking almost 10 years to devise a law dealing with acts of racism. I certainly think it took too long.

South Africa did not become an international polecat because it had the death penalty, yet that was one of the laws obliterated from the statute books. We were not ejected from the international community because homosexuals were discriminated against, nor because legally women could not choose to terminate unwanted pregnancies, yet our legislators and judges ensured that these shortcomings were rectified, before tackling racism.

But before we bash the government, it should be noted that during one of Minister of Justice and Constitutional Development Penuell Maduna’s roadshows in Vryburg in the Northern Cape it was discovered that no one in that part of the country had used the court to complain about being unfairly discriminated against.

If nobody in Vryburg — which in 1998 saw white parents use sjamboks to ensure that their school remained a “whites only” entity — feels they are unfairly discriminated against then perhaps the government was right to take its time in coming up with equality courts.

Alternatively, the government has once again set up a structure without providing the necessary personnel and training, and without making sure that people know about their new resource in the fight against racism, sexism and other forms of unfair discrimination.

I suspect the latter. A few telephone calls to some of the 60 courts across the country earmarked as pilot sites for this project revealed that most of them are at risk of becoming white elephants.

When the equality courts are used regularly we should no longer hear of incidents like the one earlier this month — where a Cape Town schoolgirl, her boyfriend and mother assaulted and defecated on a black learner and called her a “kaffir” who did not belong in the (white) school — being reduced to a school matter that the principal must sort out. Police are handling the assault allegations.

If the Act had been given the publicity it so richly deserves, it would have been known that “proceedings under this Act may be instituted by ‘any person acting in their own interest; any person acting on behalf of another person who cannot act in their own name; any person acting as a member of, or in the interests of, a group or class of persons”.

The Act allows for “any person acting in the public interest; any association acting in the interests of its members or for the South African Human Rights Commission, or the Commission for Gender Equality” to complain to the equality court.

That would afford all those sufficiently outraged by the allegation to make their opinions known in newspaper letter pages, to take one step further and actively pursue justice.

The next step would be to make any form of unfair discrimation a criminal offence instead of a civil matter, as it is now. Imagine what the many more racists would think about the prospect of sharing showers with those they hate most in jail. That would be a deterrent and a clear statement that we will not only be intolerant of bigotry in any form, but will punish it.

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