The promotion of equality and prevention of unfair discrimination. Act 4 of 2000 : court-driven or legislature-driven societal transformation?

Abstract

This article considers which institution - the legislature or the courts - is best able to effect societal change or transformation, within the context of the application of The Promotion of equality and Prevention of unfair Discrimination Act 4 of 000, which was promulgated with the express purpose of achieving such societal change. It is shown that a debate exists between authors who, on the one hand (and sometimes implicitly) argue that the legislature is without doubt the appropriate institution to accept responsibility for driving societal changes, while, on the other hand, other authors are more optimistic about the (potential) role of courts in effecting changes in society. It is argued that illustrate that courts have a very limited ability to realise social transformation. Attention is paid to inter alia, courts' (possible lack of) legitimacy, which includes the current race and gender profile of the men and women who constitute our judiciary; the institutional nature of courts, which includes the fact that courts function by primarily solving the particular dispute before them; and the limited reach remedies typically granted by courts. As regards discrimination specifically, it is shown that the drafters of the Constitution envisaged a legislature-driven programme, but that discrimination is not easily combated in legal fora other than courts. It follows that "the law" cannot effectively address discrimination. A possible solution is then discussed, namely, the creation of an inter-institutional debate between the executive authority (as concretised in the Department of Justice and Constitutional Development), the legislative authority, the judiciary (as concretised in the equality courts) and civil society.