A socio-legal analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Abstract

In the thesis I consider the potential effectiveness of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereafter “the Act”) in reaching its stated goal of achieving societal transformation in South Africa. I consider and analyse those socio-legal theories that have a bearing on the relationship between “law” and “society”, and the extent to which state law may be used in a “top-down” or instrumental fashion to steer society in a desired direction. I identify several characteristics of effective laws and compare these to the Act. As the Act is the South African version of what may be termed “antidiscrimination legislation”, I determine the usual shortcomings of this legislation in foreign jurisdictions, and identify the steps the South African legislature has taken to obviate these shortcomings. This thesis analyses four requirements of effective laws in more detail: (i) that the enforcementmechanisms should consist of specialised bodies staffed by well-trained personnel; (ii) that the source of the new law must be authoritative and prestigious; (iii) that the purpose behind the legislation must at least to a degree be compatible with existing values; and (iv) that the required change must be communicated to the large majority of the population. In order to assess the degree of expertise of equality court personnel, the first requirement above, I discuss and analyse the implementation of training programmes for court personnel tasked to preside in courts applying the Act. I illustrate that the current pool of equality court personnel was probably inadequately trained, inter alia because the individuals tasked to manage the training of equality court personnel did not follow good management practice. As to the second and third requirements of effective legislation referred to above, I report on an empirical study relating to unfair discrimination undertaken in 2001 in “white Pretoria”, Mamelodi and Atteridgeville. The results of this study suggest that the majority of South Africans do not experience explicit discrimination and where they do, they generally do not approach courts to have their grievances aired. In turn, this finding suggests that the Act will be underutilised and will not play the role envisaged for it by Parliament in combating discrimination. As to the last requirement highlighted above, I illustrate that the public awareness campaign relating to the Act was inadequate in its impact. In conclusion, the study identifies a number of weaknesses in the Act and proposes a range of amendments that would facilitate the use of these courts by complainants. I also identify further avenues of socio-legal research that could be undertaken relating to the Act, specifically how the Act may be utilised to combat poverty in South Africa.