Equality Courts in South Africa: Legal Access for the Poor
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Equal access to courts is recognized as a fundamental human right in a plethora of human rights treaties. This right is critical because it facilitates access to and protection of other rights. However, for those living in poverty, particularly those with little formal education, the right of access to the courts is often illusory. High legal costs and confusing, rigid procedures serve to keep poor litigants out of court and often result in loss when they attempt to represent themselves. In common law systems in which judges’ precedential decisions define and shape the law, this lack of access affects more than individual litigants. It deprives society as a whole of the opportunity to benefit from judicial involvement in protecting the legal rights of the poor.
South Africa has addressed this problem by creating special courts, called Equality Courts, designed to be accessible to all South Africans. These courts hear only cases relating to unfair discrimination, harassment, and hate speech. In theory, Equality Courts remove many of the major barriers to judicial access. For this reason, the successes and challenges of the South African experience can inform other programs to reduce inequality in access to the courts. The South African Equality Court model has tremendous potential to revolutionize judicial access, but its potential has not been realized, primarily due to lack of awareness about the courts, both within and outside of the judicial system.
Design of Equality Courts
Access to the courts has been a significant issue in post-apartheid South Africa. The South African Constitution guarantees a host of rights as part of an effort to design a post-apartheid social system based on equality. The courts play a critical role by protecting and interpreting these constitutional rights. However, in spite of South Africa’s emphasis on equality, it has not escaped the common problem of difficulties accessing the courts. As a result, inequality is often hidden from judicial review.
In order to address this problem, South Africa created Equality Courts under the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA). The designers of the Equality Courts identified several major barriers to litigation that could be addressed through an alternative court system. Those barriers were costs, informational deficits related to navigating the legal system, the intimidating nature of the courts, and the long time needed for litigation.
Equality Courts are meant to be very inexpensive for litigants to use. Lawyers are not needed in Equality Courts, although their use is not banned. Also, unlike many South African courts, no fees are required to place a case before an Equality Court. Litigants are required to pay witnesses a small fee, but the presiding officer can waive this fee. Originally, Equality Courts were intended to be located in all Magistrate Court buildings throughout the country to reduce travel costs for people living outside of major cities. Shared location would also lower government costs, as some Magistrate Court personnel were assigned to do double duty in Equality Courts.
The creators of the Equality Court system also took steps to ensure that even uneducated complainants would be able to access information necessary to navigate the courts without attorneys. Advice needed by litigants would be provided by an Equality clerk, whose job responsibilities included guiding complainants through the process of filing a complaint. Additionally, both the Equality clerk and the presiding officer would provide guidance on how to develop the case, and on the type of evidence to be presented. Presiding officers were also required to question witnesses themselves, when necessary, and were even given authority to call witnesses. Litigants who needed additional guidance would be allowed to get assistance from anyone, whether or not that person was a lawyer. Additionally, NGOs and certain institutions created by the South African Constitution to protect human rights were empowered to litigate on behalf of others.
To make the courts less intimidating, the legislation requires that cases be heard in an “expeditious and informal manner which facilitates and promotes participation by the parties,” according to PEPUDA. Rather than meeting in a formal courtroom, the parties would come together in an informal conference room, where the presiding officer would listen to both sides and come to a decision.
In spite of the informality of the system, Equality Courts are authorized to fashion a wide range of remedies for discrimination, with the remedy determined in consultation with the parties involved. In some cases, such as when a person is the target of a racial slur, a simple apology might be the correct remedy. In other cases, monetary damages or sweeping injunctions can be ordered. In order to protect due process, decisions can be appealed to the same appellate courts that hear appeals from Magistrate Courts.
Current Functioning of Equality Courts
Since the first Equality Courts were opened in 2003, they have been the site of some notable human rights victories. For example, Equality Court cases have led to the provision of wheelchair access in courtrooms and government offices. However, in spite of the carefully designed system, Equality Courts have yet to dramatically improve access to courts. This failing stems from problems with the flow of information, both in the public sector and among court staff.
The greatest challenge faced by Equality Courts is that they remain relatively unknown. This is due, in part, to the government’s failure to promulgate regulations governing promotion of the Equality Courts, as required by PEPUDA. Although several institutions have undertaken awareness-raising programs, and articles about Equality Courts have appeared in the news, many poor South Africans have not heard of them. Even for those who are aware of the courts, finding them can be difficult. Equality Courts have not been established in all Magistrate Court buildings as envisioned by the authorizing legislation, and there is substantial confusion about where the courts are located. Even the South African Human Rights Commission, which regularly litigates before Equality Courts, was unable to provide a list of the locations of currently functioning courts. The Institute for Democracy in South Africa was able to locate only 43 of the 220 designated Equality Courts when it did a study on the functioning of Equality Courts in October 2004. Inaccurate information about court locations on government and NGO websites is common.
This lack of information has led to severe underutilization of Equality Courts. Fewer than 700 Equality Court cases were filed between 2003, when the courts began functioning, and October 2006. More than half of these cases have been in the three provinces with the largest urban areas (KwaZulu-Natal, Gauteng, Western Cape), and some courts in rural provinces have heard no cases.
There are also problems related to the lack of information possessed by Equality Court staff. Equality clerks have not developed the expertise envisioned in the legislation. Many clerks received only two or three hours of training, which they felt did not adequately prepare them to handle complaints. After completing training, the low case load meant that they lacked enough Equality Court work to keep busy and were assigned other tasks. At this point, many do not remember their Equality Act training well enough to provide competent assistance to complainants. Some are not even aware that they are Equality clerks.
These two informational problems interact, creating further access problems. When people do hear of the courts and attempt to file a complaint, the court staff may incorrectly tell them there is no Equality clerk in the building. This, in turn, means that fewer cases are filed. Because litigants who attempt to file complaints are often unable to do so, awareness-raising work done by governmental and nongovernmental organizations does not necessarily lead to an increase in the number of cases filed. Rather, it may create frustration and disillusionment with the government in individuals who attempt to file complaints.
The government is exacerbating these problems by decommissioning Equality Courts in which few cases have been filed. This decommissioning is done without informing potential litigants or local governments and so creates further confusion about where Equality Courts are located. Decommissioning may also have an unfortunate impact on the rural poor because rural provinces have brought the fewest cases.
Equality Courts have also failed in their promise of financial accessibility. Respondents, who often possess far greater power and resources than complainants, hire lawyers to represent them. Their lawyers are often able to overpower the undereducated complainants. Even simple legal maneuvers, such as a change of venue, can force a poor or disabled complainant to drop a case because of the difficulty and cost of transportation. When cases do reach court, there is concern that strong litigators representing respondents may use Equality Courts to create case law unfriendly to complainants. Problems of unequal resources are exacerbated because litigants are not receiving the envisioned assistance from the undertrained Equality clerks.
As a result of difficulties accessing the courts, the South African Human Rights Commission concluded that “Equality Courts are not being utilised by the poor and vulnerable.” Instead, many complainants in Equality Courts come from the ranks of the relatively empowered. For example, the first major case heard by Equality Courts in the Eastern Cape was filed by four white magistrate judges who challenged the appointment of two female, black magistrate judges on grounds that they are less qualified than the white candidates.
Improving the Courts
The South African experience highlights the need to invest heavily in Equality Courts at the outset, particularly in the creation of a dedicated, expert staff, if such courts are to be successful. In South Africa, the sharing of Equality clerks with the Magistrate Courts has meant that resources are too easily diverted away from the work of Equality Courts, as well as interfering with the accumulation of expertise. If few Equality Court cases are filed, Equality clerks should be given other work to sharpen their Equality Court expertise, rather than filling their time with Magistrate Court work. This work could include engaging in awareness-raising activities. Additionally, email listservs could be used to create a network of Equality clerks that shares information and ideas relating to cases filed in other courts, thereby improving skills and providing useful advice to complainants.
The South African experience also demonstrates that any country creating a separate court system should plan to fund the courts and keep them open even in the face of relatively little uptake in the early years of the program. Although a variety of governmental and nongovernmental organizations are using seminars, press releases, radio and television advertising, and brochures to inform the public of the courts, many South Africans remain unaware of them. It is not surprising that five years is insufficient to inform the public, particularly in light of South Africa’s poor, undereducated majority and the country’s 11 official languages. However, the South African government’s decision to close some Equality Courts substantially undermines the possibility of long-term success by creating confusion regarding the location of the courts and frustrating those who learn of the courts and attempt to use them.
The South African Context
In view of the cost of creating and maintaining a separate court system with highly skilled staff for many years before the courts become well utilized, the South African experience calls into question the need for and feasibility of a separate court system. There are reasons particularly relevant to the South African context for separating Equality Courts from other courts. Most significantly, many black South Africans may distrust Magistrate Courts because of the “perceived association of magistrates’ courts with apartheid justice.” This would make black South Africans particularly unlikely to bring cases of discrimination and hate speech before Magistrate Courts. Additionally, channeling discrimination cases into Magistrate Courts could result in insufficient resources and attention being allocated to these cases, in part because of the high case backlog in Magistrate Courts.
In countries where Magistrate Courts operate efficiently and have the trust of the population, however, South Africa’s experience suggests that facilitating access to the Magistrate Court system may be preferable to the creation of a separate court system. Almost all barriers to access that Equality Courts are meant to address could be overcome by handling such cases in the regular court system, providing fee waivers and legal aid for poor litigants, and fast-tracking certain types of cases. Leaving cases within the regular court system would also eliminate most of the problems that South Africa has experienced with Equality Courts. Magistrate Courts are already established throughout the country, so physical access would not be an issue. Awareness raising would be less of an issue because most people are already aware of Magistrate Courts. Legal aid would resolve financial barriers and informational inequalities and eliminate the need to create a staff of highly skilled clerks. Such aid would also resolve issues arising from respondents’ reliance on counsel.
In sum, Equality Courts in South Africa are well designed to remove barriers to judicial access for the poor and are suited to that country’s historical context. However, there are substantial challenges in their implementation, and it is absolutely critical that such courts be staffed with trained personnel who are ready to assist complainants. If the South African government continues on its current track of underfunding and closing Equality Courts because of low levels of use, it will guarantee the failure of the courts and, likewise, fail in its promise to make courts accessible to all. Other countries considering mechanisms for opening their courts should note the challenges faced by South Africa and take steps to avert such problems.
Dana Kaersvang received her J.D. from the University of Michigan Law School and is currently serving as a Bates Fellow at the South African Human Rights Commission. Her current research is on the development of international and domestic structures to protect human rights.
International Convention on Civil and Political Rights, Art. 14(1); General Comment No. 13 of the Human Rights Committee, at para. 3; Convention on the Elimination of all Forms of Discrimination Against Women, Art. 15(4); International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(a).
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, § 10(1).
South African Human Rights Commission, The Equality Courts’ Impact on Persons with Disability and Women - The Experiences of the South African Human Rights Commission: Presentation to Justice and Constitutional Development Portfolio Committee, NA; Joint Monitoring Committee on Children, Youth and People with Disability, Joint Monitoring Committee on Improvement of Quality of Life and Status of Women and Gender, available at http://www.sahrc.org.za/sahrc_cms/downloads/Equality Review Process.doc.
Institute for Democracy in South Africa, Political Information and Monitoring Service –South Africa, Equality Courts, at 13, June 22, 2005, available at www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=1352, hereinafter Equality Courts.
Western Cape, at http://www.capegateway.gov.za/eng/directories/services/11458/94929#1; Institute for Democracy in South Africa, at http://www.idasa.org.za/index.asp?page=faqs_details.asp%3FRID%3D75, Transformative Human Rights Unit, at http://www.thru.org.za/equality.htm.
Portfolio Committee on Justice and Constitutional Development, Report on Hearings Conducted by the Portfolio Committee on Justice and Constitutional Development on the Occasion of the Review by the Parliament of South Africa on Aspects of Equality in our Society, Oct. 16 2006, available at http://www.pmg.org.za/docs/2007/comreports/070412pcjustice.htm, hereinafter Portfolio Committee Report.
Portfolio Committee Report; Edwin Naidu, Equality Courts Are Crying Out For Work, IOL, Apr. 10, 2005, available at http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20050410124727705C815888;SAHRC: Free State Equality Courts Inefficient, Mail and Guardian, Sept. 1, 2006, available at http://www.mg.co.za/articlePage.aspx?articleid=282926&area=/breaking_news/breaking_news__national/.
South African Human Rights Commission, Report to the Chairperson of the Justice and Constitutional Affairs Portfolio Committee, National Assembly, Parliament, Ms F Chohan, at 3, May 13, 2005, hereinafter Human Rights Commission Report.
Philippa Lane, South Africa's Equality Courts: An Early Assessment, Centre for the Study of Violence and Reconciliation, 2005, available at http://www.csvr.org.za/wits/papers/paprctp5.htm, hereinafter Early Assessment, (reporting that staff of Equality Court in Silver Club case was not aware of Equality Court’s existence).
University of Cape Town Race and Gender Unit, Magistrates Challenge Appointments in Equality Court, Legalbrief, Apr. 19, 2005, available at http://www.lrg.uct.ac.za/generic.php?m=/news/index.php?id=88.