April 19th and 20th 2024

New Bulgarian University, Sofia, Bulgaria

ADVANCEMENTS IN ANTI-DISCRIMINATION EFFORTS IN POST-

APARTHEID SOUTH AFRICA

WILLIAM MANGA MOKOFE (LL. D)

ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA
INDEPENDENT RESEARCHER
SENIOR LECTURER IN LAW
 INTRODUCTION

 South Africa has made significant strides in the protection against discrimination, anchored in its post-apartheid
Constitution

 The post-apartheid era in South Africa marks a critical period in the nation's history Characterized by a
determined commitment to dismantling discriminatory practices and fostering equality within its diverse
population

 Emerging from the shadows of apartheid a system that institutionalized racial segregation and oppression

 South Africa embarked on a transformative journey to build a society founded on principles of inclusivity and
justice

 Central to these efforts are key legislative measures, including the Equality and Prevention of Unfair
Discrimination Act (PEPUDA) which has played a pivotal role in shaping the country's anti-discrimination
landscape
 THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT

 The Promotion of Equality and Prevention of Unfair Discrimination Act, commonly known as the Equality
Act, stands out as a cornerstone in this legislative framework

 The Act represents a comprehensive and forward-looking approach to addressing various forms of
discrimination, including those based on race, gender, disability, religion, and other protected grounds

 The Equality Act establishes a legal framework to prevent and prohibit unfair discrimination and to promote
equal opportunities and fair treatment for all South Africans

 It places a strong emphasis on fostering a culture of tolerance, understanding, and respect within society

 Moreover, the Act has empowered institutions such as the South African Human Rights Commission (SAHRC)
to play a crucial role in monitoring and enforcing compliance with anti-discrimination measures
 LEGAL FRAMEWORK

 Since the beginning of democracy in South Africa, the government has worked hard to tackle the historical
issues of unequal distribution of resources, wealth, and power stemming from colonialism and Apartheid

 The South African Constitution was created in response to the country's history of colonial conquest and, later,
the legal enforcement of racial segregation during the apartheid era

 The courts emphasizes that the Constitution is designed to prevent the repetition of previous unjust practices

 Section 9(3) of the Constitution prohibits "unfair discrimination" against anyone, including based on "race"

 Section 9(2) of the Constitution is built on the idea that getting rid of racial discrimination does not
automatically get rid of racism, both by the government and private individuals
 Sections 9(3) and 9(2) should also be considered together with section 9(1), which states that “Everyone is
equal before the law and has the right to equal protection and benefit of the law’’

 In the case of Minister of Finance v Van Heerden, the South Africa's Constitutional court clarified that there is
no conflict between the general idea of equality before the law and the implementation of race-based corrective
measures

 The court argued that these measures are not a type of "reverse discrimination" or "positive discrimination" as
some critics suggest, instead, they are necessary to achieve the goal of equality before the law

 According to this perspective, recognizing the concept of "race" is crucial to addressing the effects of past and
ongoing racism and racial discrimination
 Specifically, the Equality Act aims to address the consequences of past discrimination, which is believed to be a
major factor contributing to the significant disparities in wealth, income, and resources in South Africa
 This includes areas like work, education, healthcare, housing, land and property, insurance, pensions,
professions, associations, and sports

 To comply, section 9(4) of the Constitution places a duty on the state to pass national legislation to prevent or
prohibit unfair discrimination and promote the achievement of equity

 The PEPUDA stands as a crucial component within South Africa's legal arsenal, designed to dismantle the
vestiges of discrimination that lingered in the aftermath of the apartheid era

 The PEPUDA was assented two years after the EEA in the year 2000 to give greater effect to Chapter 2,
Section 9 of the Constitution
 Following Chapter I, Section 5 (1), the PEPUDA is binding on the State and applicable to all persons

 While attention is placed upon the prohibition of unfair discrimination on grounds of race, gender, and
disability

 All of the following are expressly prohibited grounds for discrimination: race, gender, sex, pregnancy, family
responsibility, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language, and birth

 To eliminate discrimination, Chapter V of the PEPUDA outlines Affirmative Action Measures

 By legally proscribing discriminatory behaviour, the Act establishes a firm foundation for promoting equality
and safeguarding the rights of individuals from unjust treatment
 AFFIRMATIVE ACTION

 Affirmative action in South Africa is defined in the EEA as measures that ensures qualified people from
designated (black people, women, and people with disabilities) groups have equal opportunities in the
workplace

 Section 6(2) of the Act states that it is not unfair discrimination to take affirmative action measures consistent
with the purposes of the Act

 The EEA is another important legislation whose main purpose is to achieve equity in the workplace by

(a) Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination;
and
(b) Implementing affirmative action measures to redress the disadvantages in employment experienced by
designated groups, to ensure their equitable representation in all occupational categories and levels of the work
 SOUTH AFRICAN HUMAN RIGHTS COMMISSION

 South Africa's Constitution, established in 1996, emphasizes the importance of the Constitution and the rule
of law

 The Constitution includes the Bill of Rights, considered as the 'cornerstone of democracy in South Africa,'
which obligates the State to 'respect, protect, promote, and fulfil the rights in the Bill of Rights’

 To ensure the safeguarding and advancement of human rights, Chapter 9 of the Constitution establishes
independent national institutions

 These institutions, are accountable only to the Constitution and the law, aim to transform society from its
unjust past and guarantee fundamental rights to all South Africans
• One such institution is the South African Human Rights Commission (SAHRC), deriving its authority from the
Constitution and the Human Rights Commission Act of 1994

 The SAHRC is an essential institution established to protect and promote fundamental human rights within a
given jurisdiction

 These commissions operate at various levels, such as national, regional, or international, depending on the scope
of their mandate

 The primary purpose of the SAHRC is to ensure that individuals within its jurisdiction are treated fairly and
equally, free from discrimination and human rights abuses

 One of the crucial functions of the SAHRC is to monitor and address cases of discrimination

 Discrimination can manifest in various forms, including but not limited to race, gender, ethnicity, religion
 The commission investigates complaints, conducts inquiries, and takes necessary actions to rectify human
rights violations
 Its proactive stance is aimed at fostering a society that respects and upholds the dignity of every individual

 Despite the commendable efforts of the SAHRC, challenges persist in the realm of human rights protection

 One prominent challenge is the need to address intersectional discrimination

 Intersectionality refers to the interconnected nature of social categories such as race, gender, and class, which
create overlapping and interdependent systems of discrimination and disadvantage

 To effectively tackle intersectional discrimination, the SAHRC must adopt nuanced and comprehensive
approaches
• The commission investigates complaints, conducts inquiries, and takes necessary actions to rectify human rights
violations

 Its proactive stance is aimed at fostering a society that respects and upholds the dignity of every individual

 This involves recognizing and understanding the various factors that contribute to an individual's vulnerability to
discrimination

 For example, a woman of colour with a disability may face unique challenges that cannot be adequately addressed
by solely focusing on gender, race, or disability separately

 The SAHRC needs to develop policies and strategies that consider the multifaceted nature of discrimination

 This may include creating targeted outreach programs, providing specific support services, and conducting
thorough research to identify the specific needs of individuals facing intersecting forms of discrimination
 CHALLENGES AND PROGRESS

 The challenges and progress in the realm of anti-discrimination measures highlight the intricate nature of
addressing societal biases and fostering genuine egalitarianism

 Despite visible strides in recognizing and combating discrimination, the journey is far from straightforward, with
various hurdles that demand a nuanced and multifaceted approach

 One of the key challenges lies in tackling intersectional discrimination. People often experience discrimination
not just based on a single characteristic but as a result of the intersection of several factors

 This complexity makes it difficult to address discrimination through a one-size-fits-all approach, requiring a
comprehensive understanding of the interconnected layers of identity and privilege
 Systemic biases embedded within institutions and structures present another formidable challenge

 These biases are deeply ingrained and can perpetuate discrimination even when individuals within these systems
may not harbour explicit discriminatory intentions

 Overcoming systemic biases requires a systematic overhaul of policies, procedures, and organizational cultures
to ensure that equality is not only advocated for but also embedded into the fabric of institutions

 Cultural norms also contribute to the complexity of addressing discrimination

 Societal attitudes and expectations, often deeply rooted in historical context, can perpetuate stereotypes and
discriminatory behaviours

 Changing these norms requires a combination of education, advocacy, and societal dialogue to challenge
ingrained beliefs and promote a more inclusive and accepting culture
CONCLUSION

In conclusion, South Africa is committed to eliminating discrimination and promoting inclusivity through legal
frameworks like the Promotion of Equality and Prevention of Unfair Discrimination Act. Despite challenges, the
nation's proactive measures, including affirmative action and the Human Rights Commission's role, demonstrate
ongoing efforts to address systemic inequalities. As South Africa confronts intersectional discrimination, it
remains steadfast in its pursuit of an inclusive and equitable society for all.

THE END!