What is the Law on Racism?

In a country like South Africa, filled with such an incredible level of natural beauty and vibrant individuals, it is sad to consider that when many people from around the world think of us, their thoughts immediately drift to the legacy of Apartheid and the discriminatory laws that existed therein. It can be argued however that this is a natural response, after all, current democratic South Africa is still a relatively new phenomenon and we can’t reasonably believe that our historical scars will heal completely in just a few short years. But how far have we come really? How are issues of racism and equality treated in South Africa presently and what does the law say about all this? What is the Law on Racism?

From a legal perspective, racism is a notoriously tricky issue to tackle. Unlike crimes such as assault or theft which tend to have more defined forms, racial bigotry may be found lurking behind a person’s speech or in the way that they treat others. Likewise, it can be much harder to determine when a person’s behaviour was a result of racial prejudice or simply due to a dislike of the individual.

That said, South Africans are theoretically protected against most forms of racism via 2 important pieces of legislation –

• The Bill of Rights – This section of the country’s constitution notes that neither the state nor any individual may ‘unfairly discriminate either directly or indirectly against anyone on specific grounds including race.
• The Promotion of Equality and Prevention of Unfair Discrimination Act 2000 – This document, often shortened to ‘The Equality Act’, is designed to combat instances of unfair discrimination, harassment and hate speech. It also lays the groundwork for the establishment of the ‘Equality Courts’ which were specifically created to deal with cases involving these issues.

One of the chief components of these anti-racist rulings is of equality. But what exactly does this entail?

What is the Law on Equality?

The three main thrusts for equality in South Africa come in the following forms –

• Equality before the Law – Everyone is entitled to the same treatment before the law and the same protections which that treatment brings.
• Equality of Rights – Everyone is entitled to the same rights and freedoms as provided by the Constitution.
• Freedom from Unfair Discrimination – The Equality Act notes certain prohibited grounds upon which discrimination is considered unfair. These grounds include things like race, gender, religion, culture, etc.

What does Equality Mean in South Africa?

Using the points above as a guide, it would seem as though certain practices in South Africa are operating with open disregard to the Constitutional provisions that have been given. Not so fast. You see, certain types of discrimination have been classified as ‘fair discrimination’ and are thus legally acceptable if they fall within the following categories –

• Discrimination based on affirmative action programs.
• Discrimination based on inherent job requirements (ie, not hiring a blind truck driver).
• Compulsory discrimination by law (ie, not hiring a child).
• Discrimination based on productivity.

What is an Example of Equality in Law?

The greatest example of Equality in Law can be seen when we compare modern-day South Africa with Apartheid-era South Africa.

During Apartheid, legislation such as the Native Laws Amendment Act of 1952 (later called the Black Laws Amendment Act of 1952) only allowed non-white South Africans to gain permanent residence in urban areas in very specific circumstances (this is just one example of race-specific laws, there were many others).

By contrast, South African legislation today isn’t usually created with certain races in mind, thus, any limitations and stipulations will normally apply to all citizens regardless of their colour.

What is the Unfair Discrimination Act?

The Unfair Discrimination Act is just another name sometimes given to the ‘Promotion of Equality and Prevention of Unfair Discrimination Act 2000’. As noted, this act helped to establish the Equality Courts and primarily deals with issues of hate speech, unfair discrimination and harassment.

What are the Laws that Protect Against Discrimination?

South Africans enjoy generalised protection from unfair discrimination based mainly on 3 different pieces of legislation –

• The Bill of Rights – This provides us with fundamental Constitutional protection against unfair discrimination
• The Equality Act – This creates a more intricate legal framework to deal with unfair discrimination including the establishment of the Equality Courts
• The Employment Equality Act of 1998 – This act specifically deals with issues of unfair employment discrimination

What is Crimen Injuria?

Under South African common law, Crimen Injuria is a criminal offence that involves “unlawfully and intentionally impairing the dignity or privacy of another person”. These charges are normally put to a ‘reasonable person test’ to determine if they can be sensibly viewed as humiliating or degrading.

If found guilty, a person charged with crimen injuria can be subject to heavy fines and even jail time. It should be noted, however, that the offence has been criticized as being unequally enforced when committed against white South Africans although a common counterargument to this point is that the socio-political context of the country and its history has to be considered when dealing with such allegations. This rebuttal has even been made by the Constitutional Court (see chapters 48 + 49) which highlights the importance of considering these infractions alongside the milieu in which they occur.

What is the Hate Speech Bill?

The Prevention and Combating of Hate Crimes and Hate Speech Bill is currently being considered in government and could if implemented, further detail offences of hate speech and hate crimes alongside appropriate punishments for such offences.

This bill is seen by some as vital to ensure the safety and dignity of certain marginalised groups which frequently find themselves in danger of bigoted and discriminatory treatment based on certain immutable characteristics.

On the other hand, some view this new bill as a further curtailment of freedom of expression throughout the country and something which can easily be used to silence unwanted voices and opinions.

Some of these groups have criticized the vague nature of terms like ‘harm’ which appear in the bill and claim that similar rules have been unevenly unapplied in the past.

A notable issue with this type of legislation is how we determine what we consider to be ‘offensive’ or ‘harmful’ with different groups making different judgements based on their personal concepts of power dynamics within society.

In Conclusion – What is the Law on Racism and Discrimination in South Africa?

The Bill of Rights provides Constitutional protection for South Africans against unfair discrimination based on certain prohibited grounds. This core principle is then backed up by pieces of legislation such as the Equality Act and the Employment Equality Act which provide both a detailed framework as well as a method for prosecution when dealing with instances of racism and any related form of discrimination.

Fundamentally, South Africans are supposed to experience true equality before the law which should prohibit any type of special legal treatment based on race or any other constitutionally protected characteristic. It should be noted, however, that certain types of discrimination are considered to be ‘fair’ in the eyes of the law which thus allows for things like affirmative action programs.

A common phrase encountered in this part of the legal system is that of crimen injuria which is a criminal offence that involves ‘unlawfully and intentionally impairing the dignity or privacy of another person. Individuals who are prosecuted for racist language are normally charged with this crime although it has been argued by some that it is unevenly enforced and racism towards certain groups often goes unpunished.

A new Hate Speech bill is currently being considered which could broaden charges such as ‘hate speech’ and ‘hate crimes’. While this bill has been welcomed by some as further protection against bigotry, others view it as a further limitation on freedom of expression within South Africa.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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