South Africa: Constitutional Assembly Resources

Community Peace Foundation

SUBMISSION MADE FOR THE ATTENTION OF: THEME COMMITTEE V: RELATIONSHIP BETWEEN THE DIFFERENT LEVELS OF COURT

"Your freedom ends where my nose begins" - Anon.

Introduction,.
Approximately two months ago, a couple from Guguletu allegedly suffered a racist attack at the hands of a salesman in the Belville area. They were apparently informed that there are "no Kaffirs" allowed to shop there. The matter was reported in the South newspaper. Commenting on the issue, a spokesperson from the Ministry of Justice pointed out that unfortunately in such incidents the Constitutional Court cannot intervene since the interim constitution (of 1993) only operates vertically.

This presents just one example of the anomaly of a constitution purportedly founded on principles promoting human rights; whose application can only bind organs of state and government structures [article 7(1)]. This is referred to as the vertical application of the constitution.

The purpose of an entrenched Bill of Rights:
An entrenched Bill of Rights in a Constitution is a tool used to protect human beings from dehumanising activities of others. These "others" could be state I government bodies; juristic persons; institutions; individuals.

The elements of racism and sexism are prohibited by the Fundamental Rights Chapter of the interim constitution. This .chapter also entrenches human rights based on the principles of equality and dignity in articles; 8 and 10 respectively- However, significantly absent from the entrenched provisions is one that binds private persons,

Transforming South Africa:

If a culture of racism, sexism, religious and other intolerance has to be effectively transformed to through the constitution, little impact can be achieved through a court other than a constitutional court. even before its sitting, the constitutional court has come to epitomise that which makes the difference from the past. It represents interests of that highest authority in the, country - the constitution. One has only to read articles and letters featured in South African magazines, newspapers and other publications on the issue to appreciate this.

The message that the people in this country get through the exclusion of the constitutional court from any issues that outlaw bigotry between private individuals is that discrimination is not strictly speaking unconstitutional. This appears to mean that it is only the government and state that should respect the human right principles enshrined in the constitution.

The state is not the only entity capable of causing harm to others. Private persons also got attached to the habit of indulging in negative discriminatory practices,

In order to effectively transform the thinking, rnindset and culture of a past racist society the constitutional court should be the court of first instance on these issues.

It could be argued that the ordinary courts could deal with these issues, as defamation - for example. However, it is submitted that an action for defamation in the ordinary court, does not have the same import that an action featuring an unconstitutional act would have. Entrenching human rights in a Bill of Rights I Fundamental Rights reflects the howling need to ensure that all people are protected from the dehumanising acts of others. In that way ordinary courts are unlikely to make as forcible an impact when sitting in their generic form on constitutional issues - unless it is stipulated that they are sitting in their institutional forrn.

Assuming that the constitutional court hall be inundated with cases featuring government and state bodies, then it should be made clear that when other courts sit on these issues they are sitting as adjuncts of the constitutional court. Adjustments featuring this should be made to the constitution.

Conclusion:

Conflicting messages that one roads from the entrenched rights as enshrined in the constitution apparently outlaw infractions by organs of governrncnt; white allowing the daily discriminatory practices and humiliation that people experience in their interaction with non-state organs.

If we are to effectively transform South Africa to a happier nation that enjoys equality, human dignity and respect for others- all persons ,should be consciously aware of the "mundane" acts that constitute discrimination. The message has to be put across that racisrn and other forms of bigotry shall not be tolerated. A business enterprise which practises this should be hauled before a constitutional court. Any other private person should know that they stand much to lose by taking us back into the past. There is more negative publicity attached to being placed in court for a constitutional infraction than for defamation.

I therefore submit that

Private persons should be bound by the Chapter on Fundamental Rights by inserting a provision that entrenches this duty. This would ensure that It Is of horizontal application;

Jurisdiction over constitutional infractions be extended to other or select courts for purposes of attending to constitution matters. This should only be where the constitutional court cannot sit over the matter. Adjustments to reflect that other courts may sit as Adjuncts I Auxilliaries of the Constitutional Court should be inserted in the article on "Engaging the constitutional court".

Costs of court in constitutional issues where private persons are the offenders be borne by the offending party.

Submission made by: Mbell Mncedi 11 January 1994.