The following is an extract from the SAHRC’s Annual Trends Analysis Report for 2016/17

2.4.3 Equality

Over the five year period of review, the highest number of human rights’ violation reported to the Commission was in the category of equality rights’ violation. Between 2014/15 and 2015/16, equality complaints jumped from 493 to 749, representing an increase of 34%. The number dropped marginally in 2016/17 to 705. A special consideration of the right to equality in analysing trends in complaints is thus warranted. Endemic inequality in South Africa results in the negation and violation of numerous other basic rights guarantees within the Bill of Rights.18

The right to equality, enshrined in section 9 of the Constitution, provides for the promotion of equality and the prohibition of unfair discrimination. Section 9(2) of the Constitution states that in order “to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” In South Africa, section 9(3) of the Constitution prohibits unfair discrimination on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Discrimination on one or more of these grounds is deemed to be unfair discrimination unless it is established that the discrimination is fair.19 This distinction is important, particularly because of South Africa’s unique history of entrenched, systemic racism against and oppression of black people, and its huge inequalities. Apartheid perfected, in a most pernicious way, white supremacy and racism and oppression that existed under colonialism.

Enabling legislation in the form of PEPUDA was enacted in terms of Section 9(2) of the Constitution to:

- prevent and prohibit unfair discrimination and harassment;

- promote equality and eliminate unfair discrimination;

- prevent and prohibit hate speech; and

- provide for matters connected therewith.

PEPUDA endeavours to facilitate South Africa’s transition to 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 for all.

Equality is a key focus area of the work of the Commission in discharging its mandate      to promote a culture of respect for human rights in a democratic South Africa through protection, monitoring and education about basic rights. The constitutionally guaranteed right to equality and the equal protection and benefit of the law must be understood in the context of South Africa’s history of inequality, racism, and sexism briefly outlined above. For these reasons, together with the understanding that the right to equality is intrinsically linked to other basic rights, the Commission adopts a broad approach to equality complaints, accepting those which sometimes have an overlap with bodies such as the Commission for Gender Equality (CGE) or other Chapter 9 institutions. The Commission has committed itself to the eradication of inequality and unfair discrimination since its inception by responding to public interest matters in the form of national hearings and facilitating dialogues to deepen an understanding of the right to equality. Over time, particular focus has been brought to bear on violations relating to the grounds of race, disability, and ethnic and social origin.

The Commission’s continued strategic focus on the right to equality is informed by its recognition of the need to transform society economically, socially, and politically to ensure meaningful realisation of rights for all. It is acutely aware that the continued manifestation of violations to the right to equality requires reactive responses to complaints on the one hand, and more long-term proactive interventions to promote social cohesion and fully eradicate the scourge of inequality on the other.

The Commission has oriented itself to respond to the increasing equality related complaints it receives through the use of systemic investigations, ADR and litigation. These interventions are discussed in the chapters which follow.

Equality related complaints received per year 

Table 8: Percentage of equality related complaints as a percentage of total complaints per year

Table 8 indicates the number of complaints based on equality received annually against the total number of complaints received by the Commission. Equality related complaints have consistently constituted the highest number of complaints received by the Commission over the period under review, which is unsurprising given the historical context set out above. Equality related complaints have increased by 12.8% on average over the last five years, reaching highs of 16% in 2015/16 and 14% in 2016/17.

Figure 3: Average percentage of equality complaints recorded per provincial office

Figure 3 illustrates the average percentage of equality complaints recorded by the Commission per provincial office over the five years under review. The Gauteng provincial office recorded the highest percentage of equality related complaints over the review period (38%). This was followed by the Western Cape (15%) and the KwaZulu-Natal provincial offices (14%). These three provincial offices are referred to as the “high intake” offices of the Commission.

Equality complaints on specified grounds of discrimination

The listed grounds of unfair discrimination in section 9(3) of the right to equality include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The Commission records complaints of unfair discrimination on the basis of any of the listed grounds. Such complaints are categorised based on the primary equality rights’ violation implicated in the complaint, and not all the rights affected in the violation. Interrelated rights are not recorded. Inequality on the basis of more than one ground of discrimination, such as race and gender and class, gender and disability, race and sexual orientation, race and social origin and disability, is not recorded, although it is often obvious from the circumstances of the rights’ violation.

The Commission now records all demographic information about  the complainants, as well as all rights violated by the transgression (recommended by the SAHRC research brief on ESR 2015/16).20 The concept of intersectionality21 explains how racism is compounded for black women by patriarchy, an entrenched system of oppression and inequality of women, and compounded even further by poverty, class, sexual orientation, religion, disability, xenophobia and other forms of oppression and vulnerability.

Types of equality complaints

Table 9: Number of complaints on grounds of equality per year

Table 9 shows that unfair discrimination on the grounds of race, disability, and ethnic and social origin are the top three complaints. In 2015/16, 505 complaints out of a total of 749 equality complaints were race related, an increase of 40% from 2014/15 which had 289 recorded complaints, and approximately 10 times more than the next two highest grounds, namely, disability (66), and ethnic and social origin (47). The number of disability related complaints has been on average 67, excluding 45 complaints in 2012/13. Ethnic or social origin related complaints has been on average 44 over the years reviewed.

In the 2016/17 year, race, disability, and ethnic or social origin continue to be the highest grounds of equality related complaints reported to the Commission. Almost all equality related complaints have decreased in number, except for disability. The latter increased from 45 in the 2012/13 financial year to 69 in the 2016/17 year and appear to be on an upward trajectory. Race related complaints have decreased marginally from 505 in 2015/16 to 486 in 2016/17, but the numbers remain extremely high, particularly in comparison to the first three financial years under review, which averaged 266 race related complaints a year. Ethnic and social origin related complaints have had the most significant decrease from 47 to 27, which puts them on par with sexual orientation (24) and age related (21) complaints.

While gender related complaints reported to the Commission are very low, this does not reflect an accurate picture of gender based discrimination in South Africa, and complaints of this nature reported to the Commission are, as a matter of course, referred to the CGE. Most gender based complaints are reported directly to the CGE. Discrimination on the grounds of gender constitutes the highest ground of discrimination, with 894 complaints reported to the CGE in 2013/14, compared to 297 race related complaints reported to     the SAHRC.22 In addition, the SAHRC deals with a number of race and other grounds of equality related complaints reported by women that would also constitute gender related discrimination. Similarly, the number of sexual orientation related complaints reported to the SAHRC remains low at 24 for 2016/17.

Most of these complaints are reported directly to the CGE. Pervasive discrimination against members of the South African LGBTIQ community, high levels of homophobic hate speech and the frequency of hate crimes, particularly the murder of black women who identify     as lesbian or queer, are an issue of great concern. Despite the mandate of the CGE, the Commission has addressed cases of discrimination against LGBTIQ people, and brought an application to the EC in a case of hate speech at the request of LGBTIQ organisations in 2016/17.23 It has also undertaken a number of initiatives outside of the complaints handling process to enforce rights and secure reforms, including the 2014 equality roundtable dialogue,24 the African regional seminar on violence and discrimination based on sexual orientation gender identity and expression (SOGIE) in 2016,25 and submissions to treaty bodies.26

2.4.4.  Equality: Race

Race based discrimination presents the greatest challenge to the work of the Commission, as evidenced by the extremely high volume and the frequency of race related complaints received by the Commission in 2015/16 and 2016/17.

Figure 4 shows that race related complaints comprise the highest percentage of equality complaints per year. Between 2013/14 and 2016/17, the number of race related complaints has exceeded the total number of equality complaints by an average of 62% per year.   The percentage of race related complaints is increasing year on year and reached 69% in 2016/17.

Figure 4: Race related complaints as a percentage of equality complaints per year

The public exposure of many racist incidents can be attributed to the growing popularity and use of various social media platforms (particularly Facebook and Twitter). In addition, people use social media as a platform to express racism. Derogatory comments, intended to denigrate the intelligence, humanity, appearance, and beliefs of black people, are rife. Racist remarks commonly include demeaning epithets like “baboon”, “monkey”, “aap” “hotnot”, and “coolie”. The use of the “K” word is endemic.

These incidents of racial discrimination take place at schools, universities, businesses, and in the workplace. They are not limited to verbal abuse, but often also entail further violations, including physical violence, intimidation, sexual harassment or assault, and being physically excluded or removed from establishments or businesses.

The Commission deals with race based complaints through the use of ADR mechanisms  to assist parties to reach settlement, or through litigation if the matter is very serious or the complainant does not want to settle. The Commission has litigated on a number of high profile hate speech related cases in the ECs and the high courts. These have involved denigrating remarks that reinforce racist attitudes to and stereotypes about black people, comments that amount to and promote incitement to hatred, and comments that express and promote white supremacy. The courts have found that these expressions of racism amount to hate speech. The Commission has thus been developing the EC jurisprudence on hate speech. These cases are discussed in chapter 5.

However, racism is systemic and racist attitudes remain largely unchanged. For many poor black people, for example, farm and domestic workers, in South Africa, racism is a part of the daily fabric of their lives, and they remain vulnerable to racist treatment and name calling, and race based attacks. 

The public exposure of many racist incidents can be attributed to the growing popularity and use of various social media platforms.

Racism has been an integral feature of Western society for centuries. It has been and continues to be the dominant world view, shaping South African society since the colonial era. Racism is arguably the most pernicious system of oppression in the world. It is informed by an assumption of innate racial superiority, and the denial of the humanity of people of different racial and/or ethnic groups. Despite democracy, patterns of racism and systemic racial inequality remain entrenched in South Africa. Persistent inequality contributes to ongoing violations of basic human rights and extreme poverty. Complaints about racism remain of serious concern to the Commission.

However, when the compounded effects of its impact, and violations to multiple rights of impacted people are considered, the need   for concerted interventions by all sectors of society to eradicate racism are most urgent. Over a period of time, the Commission has raised its concerns about the prevalence of racial discrimination in South Africa and its impact on basic human rights through a range of interventions.

These have included the production of equality reports, the equality roundtable dialogue report 2014 and reports to various international bodies such as the committee on the elimination of racial discrimination (ICERD). These reports inform the extent to which the country has progressed towards the attainment of equality and contain recommendations to responsible authorities for reforms by the Commission. In 2016/17, the Commission intervened to accelerate efforts for the adoption of the national action plan to combat racism, racial discrimination, xenophobia and related intolerance (NAP) and the National Development Plan (NDP) by the end of 2018. To this end, the Commission convened a multi- sectoral dialogue on racism, which culminated in the Midrand declaration against racism, adopted on 15 March 2017.27

Equality – Race complaints per provincial office, per financial year

Table 10 reflects the number of race related complaints reported to the Commissions provincial offices during the period under review. In the five year period, the Gauteng provincial office recorded the highest number of race related complaints. In three of the four financial years, the KwaZulu-Natal provincial office recorded the second highest number of race related complaints. The number of complaints in this category has increased in KwaZulu-Natal year on year, while it has been unpredictable in Gauteng, peaking dramatically in both provinces during 2015/16. Most other provinces do not demonstrate increases of great significance, with margins in peaks and troughs for these provinces around 5% to 10% except for the Free State province which increased from no equality/race based complaints in 2012 to 42 complaints during 2015/16.

Table 10: Number of equality complaints per province per year

Issued by the SAHRC 10 December 2018. The full report can be accessed here – PDF.

Footnotes:

18 See page on equality on the SAHRC website, as well as current reports on equality.

19 Section 9(5).

20 SAHRC research brief on ESR 2015/16.

21 The term ‘intersectionality’ was first coined by legal scholar Kimberlé Crenshaw in 1989.

22 Commission on Gender Equality annual report 2013/14. Available at: https://drive.google.com/file/ d/0B43RY8hVdugGQ3JvaWF5RFFZVTg/view. More recent reports are not available on the CGE website.

23 South African Human Rights Commission and 3 others v Dubula Jonathan (“Jon”) Qwelane Case No. EQ44/2009 9EQ13/2012. The case involved a journalist, Jon Qwelane, who published an article in a national newspaper, in which he expressed extreme contempt for LGBTIQ people, calling homosexuality unnatural and referring to gay marriages as bestiality.

24 The report addresses the issues of sexual orientation and equality, and migration and the rights of non-nationals. Equality roundtable dialogue report, 27 March 2014. Available here: https://www.sahrc.org.za/home/21/files/ Equality%20Roundtable%20Dialogue%20Report.pdf.

25 SOGIE explored practical solutions for addressing violence and discrimination against persons based on sexual orientation, gender identity and expression and primarily focused on implementing resolution 275. The seminar culminated in the adoption of the 2016 Ekurhuleni declaration.

26 SAHRC NHRI report to CERD 2016.

27 The Midrand declaration called on all stakeholders - state and non-state - to pledge their support to the im- plementation of the policies and programmes outlined in the national action plan. SAHRC research brief on race and equality 2013-2017. Available here.