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Anti-Racism as law: Joel Pollak reports on challenges facing South Africa's ambitious efforts to legislate against racism. (South Africa in Focus).

The legacy of the apartheid legal structure is literally stamped on the South African landscape. In Cape Town, its somber monument is a great grassy swath of land stretching east of the downtown area along the seaward slopes of Devil's Peak. Now called Zonnebloem (Afrikaans for "wildflower"), this treeless and houseless wasteland was once known as District Six, a vibrant mixed-race neighborhood notorious for its grit and celebrated for its culture. It was slowly demolished and evacuated by the apartheid government from the late 1960s to the early 1980s, and its residents were forced into townships on the Cape Flats. But before the bulldozers and wrecking balls had moved in, District Six had already been destroyed by law. In 1966 it was declared a "white group area" according to the Group Areas Act of 1950.

The Group Areas Act, the legal pillar of residential apartheid, was finally abolished in the early 1990s, along with a host of other apartheid-era laws. But the legal structure of racism in South Africa, which took over three centuries to create, is proving difficult to erase, and remnants of it remain in place, seven years after the country's first democratic elections.

"The apartheid laws formed an insidious network at all levels of government, from national down to municipal," says Judith Cohen, legislation monitor at the South African Human Rights Commission. "Getting rid of blatant apartheid legislation was easier, but we're still going through the process of dealing with laws that had an indirect effect." Even more difficult is the task of redressing the deep inequalities that apartheid and colonization created--inequalities that persist along racial lines, despite the emergence of a small black political and economic elite.

In the years since the election of Nelson Mandela in 1994, South Africa's legislators have created a powerful new legal framework that promotes both human rights and socioeconomic progress. At the center of this new framework is the new constitution, which came into effect in late 1996 after years of negotiation. Subsequently, new laws were passed which together give South Africa the world's premier anti-racist legal framework. But against the grim legacy of South Africa's past and the crushing realities of its present, these efforts face formidable challenges.

New Foundations

The foundation of all recent legal efforts to fight racism is in the first two chapters of the new constitution. Chapter 1 declares that "Non-racialism" is one of the country's founding values. Chapter 2, known as the "Bill of Rights," declares that "everyone is equal before the law" and that the government "may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." The bill of rights also explicitly provides for affirmative action policies designed to redress past injustices.

"Non-racialism" has nothing in common with "colorblindness." One of the two major pieces of anti-racist legislation that has been subsequently enacted is the Employment Equity Act (EEA) of 1998. This sweeping law directs all employers, public and private, to eliminate unfair discrimination in the workplace, and requires businesses with 50 or more employees and/or annual revenues exceeding certain threshold levels to implement affirmative action programs aimed at blacks, women, and the disabled.

The EEA goes further; it mandates that "suitably qualified" members of disadvantaged groups must be "equitably represented" at all levels of a company. "Preferential treatment" and "numerical goals" may be used to achieve this goal, but the use of quotas is not allowed. Employers are also required to consult with unions and report to the Department of Labour on its progress. Businesses failing to comply with the law are subject to steep fines.

The other major piece of anti-racist legislation is the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), enacted in February 2000. The purpose of PEPUDA is to prevent and prohibit unfair discrimination, harassment, and hate speech. The legislation does not merely apply in the workplace, but also applies to the state and all of the individuals living within it. PEPUDA establishes that "everyone has a duty to promote equality," notes Judith February, legislative monitor at the Institute for Democracy in South Africa (Idasa). February also observes that PEPUDA implies that liability for discrimination "may arise from the application of policies that are race neutral but which have a disparate impact on black people."

The scope of legal standing established by PEPUDA is extremely broad, so that any person can bring a claim of discrimination to the courts in the public interest, even if they are not directly affected themselves. Further, PEPUDA defines only four acceptable defenses against a claim of discrimination: that the discrimination was not of the type specifically ruled our by the law; that it was "reasonable and justifiable"; that it was part of an affirmative action program; or that it was justified due to the specific demands of a particular task. To adjudicate all claims, PEPUDA established a system of "equality courts" with appointees from the human rights field.

These laws, along with a few others, form the core of the most progressive civil rights and affirmative action policy in the world. Their most striking feature, aside from their grand ambitions and wide scope, is their apparent invulnerability to the kinds of constitutional challenges that have derailed affirmative action programs in the United States. The South African Constitution recognizes that in a deeply unequal society, certain forms of "fair discrimination" will be necessary to establish equality.

In general, the courts have tended to uphold affirmative action and have established a very high threshold for white claims of reverse discrimination. An example is a 1995 case involving municipal workers in Durban that set a precedent for the new legislation. A black employee's appointment over a more qualified white applicant was upheld by the court on the grounds that the black applicant was "suitably qualified" and could acquire the skills required for the job in a reasonable period of time. Decisions such as this one have laid a solid legal foundation for affirmative action programs and for broader legislative efforts to redress racial inequalities.

Huge Obstacles

But while the legal achievements of the EEA and PEPUDA are formidable, implementing and enforcing their provisions has proven to be a difficult task.

"There is a severe shortage of inspectors to check on whether employers are following the rules, and a great reluctance among many employers to comply, and so consequently a great deal of discrimination on a racial basis still occurs," observes Patrick Craven, spokesperson for the Congress of South African Trade Unions (Cosatu).

In addition, small-scale entrepreneurs are widely thought to be ducking the affirmative-action provisions by keeping their workforces under 50 employees. Judith February notes that the implementation of PEPUDA, which has yet to occur, has been slowed down by difficulties in the drafting of administrative regulations. And the equality courts that PEPUDA provides for have yet to be created because of a lack of funds.

Enforcement in American civil rights law often happens when individuals bring cases to court. But in South Africa, such "private enforcement" is difficult. Until very recently, lawyers were not allowed to work on a contingency basis, so individuals who wish to file cases face steep financial obstacles. And the justice system is under severe strain already, barely able to adjudicate the normal run of criminal cases assigned to it. Consequently, the reality of South African society continues to lag well behind the letter of its law.

Non-governmental organizations (NGOs) pick up the slack to a certain extent, raising public awareness of race issues, supporting the enforcement of existing laws, and pushing for new legislation. These include trade unions such as the predominantly black Cosatu, human rights groups such as Black Sash, legal associations such as the National Association for Democratic Lawyers, and academic institutes such as the University of Cape Town's Law, Race, and Gender Unit. But these organizations tend to concentrate on their specific agendas and are only loosely organized when it comes to addressing broader racial issues.

In addition, a wide variety of competing ideologies and interests operate within the general South African consensus that "racism is a problem," including several NGOs that are somewhat hostile towards the new legislation. One of these is the Mineworkers' Union, which has repeatedly challenged the interpretation of affirmative action laws; another is the conservative South African Institute of Race Relations, which supports more restrained and limited approaches to redressing past racial inequalities.

Although it plays a vigorous role in setting the agenda on racial issues, the NGO sector alone lacks the power and the coordination to push the new legal infrastructure past the obstacles it faces.

A partial answer is provided by Chapter 9 of the South African Constitution. This section creates several state-funded watchdog institutions that operate independently from political interference. These "Chapter 9 institutions" include the South African Human Rights Commission (SAHRC), which is given investigative powers and is instructed to conduct research, to educate the public, and to "secure appropriate redress where human rights have been violated."

Under the chairmanship of Reverend Dr. Barney Pityana, the SAHRC has brought national attention to the enduring problem of racism by investigating a number of high-profile cases, including one in which a black girl was painted silver by a white man who suspected her of shoplifting. SAHRC has also worked hard behind the scenes as a parliamentary monitor. "All new legislation gets screened against the new constitution to ensure that it doesn't violate any rights," Cohen explains. "If it does, we intervene in the legislative process through providing a written submission to parliament or through lobbying." SAHRC also addresses public complaints about human rights violations and has conducted broad investigations of racism in South African society, including the media, police force, and school systems.

Socioeconomic Rights

A more difficult task is dealing with the subtle but systemic racism of socioeconomic inequality. The constitution's bill of rights tries to address this problem through a host of far-reaching guarantees including rights to adequate housing, basic utilities and health care, and a clean environment, among others. The government has made some progress towards ensuring these rights: it has built hundreds of thousands of homes and brought electricity and running water to many impoverished communities.

But there is certainly much more work to be done. The unfortunate reality is that attempts to fulfill these rights, as well as to monitor and enforce them, have been frustrated by a familiar set of problems--the lack of financial resources and the shortcomings of the state bureaucracy.

The constitution implicitly recognizes these obstacles, and includes a clause allowing for the "progressive realization" of the rights it guarantees. It has been left to the courts to decide what that means. In late 2000, a group of 900 squatters settled illegally on land that the government had set aside for public housing. They were evicted and their shacks were destroyed. They then applied for a court order requiring the government to build them houses on the basis of the right to adequate housing guaranteed in the constitution. In the case, known as Government of South Africa and others v. Grootboom and others, the court ruled that the squatters' constitutional rights entitled them to the "bare minimum" of rents, latrines, and water from the government, but that they could not claim an immediate right to permanent housing. Their constitutional rights were recognized, but the principle of "progressive realization" was reaffirmed.

The Challenge of Rebuilding

There are a host of other race-related issues that the new framework of South African law must also deal with. Alongside the enduring racism of old, a new xenophobia directed against African migrants has emerged that the government has failed to fully confront. And some Afrikaners continue to campaign for some form of ethnic self-determination"--a right that is guaranteed to them under Chapter 14 of the new constitution. While some of the ideals of South Africa's transformation have been realized, many are still promises that await their "progressive realization."

"It's not going to happen tomorrow," Judith February acknowledges. "But one camp is always looking at what the government doesn't do, and the other looks at what it has done. These new laws are providing a framework for social transformation, and that's still important." In the end, the law alone can merely be a guide; South Africans themselves must animate it through the cumulative effect of their sustained individual efforts. As with District Six, the challenge is in the rebuilding.

Joel Pollak is a freelance journalist based in Cape Town, South Africa.

Joel Pollak, "Anti-Racism as Law." Joel is a freelance journalist based in Cape Town, South Africa. His writings cover politics and culture in the United States, South Africa and the Middle East.
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Author:Pollak, Joel
Publication:Colorlines Magazine
Geographic Code:6SOUT
Date:Mar 22, 2002
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