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FROM:COM. PEPCE FOUNDATION. TO: 021
4614339 1990- 1- 5 22:47
9484
P.02
University of the Western
Cape 7bM
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 Guguietu allegedly suffered a racist attack at the hands of a
salesman in the Beliville
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 purpotedly 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 / government bodies; juristic persons; institutions;
individuals.
M Mnoad i 1 Janu"
1994.
Directors: Prof C. Shearing, Adu.
A.M. Omar
Executiue Director.. Dr. P.M. Ncholo
,--RDM:CJM.
PEQCE F:OUNDATION. TO: 021 4614339 1990- 1- 5
22:48 9434 P.03
The elements of racism and
sexism are prohibited by the Fundamental Rights Chapter of the interim
constitution. This ^.hapter also
entrenches human rights based on the
principles of equality and dignity in artirio,.q A and10 respertively. 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 this country
- the constitution. One has
only to road articles and letters featured in South African magazines,
newspapers and other publications
on the issue to appreciale.,this.
The
message that the people in this country got through the exclusion of the
constitutional court from any issues that outlaw bigotry
between private
individuals is that discrimination is not gtrictly 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, nnindset 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 courts 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 - uniesr. it
is stipulated that they are sitting in their ct)nstitLitinnal fornn.
M
Uncadi
,I J.Uwy 1994.
FROM:CDM. PEQCE FOUNDPTI3N. T(I:
021 4614339 1990- 1- 5 22:49 #434 P.04
Assuming that the
constitutional court !shall 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 mad* to the
constitution.
Conclusion:
Conflicting messages that one reads from
the entrenched rights as enshrined in the constitution apparently outlaw
infractions by organs
of government; while allowing the daily discriminatory
prectiooa 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 racism 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 cous-1 for, a coristitutiotjiil irtfractiurt tliari
for defurviatiori.
I therefore rubmit
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 matt,p.r....
Thi,.q qhntild only be where the
constitutional court cannot sit over the nnatter. Adjustments to reflect that
other courts may sit as Adjuncts I Auxiillarlea of
the Conr.titutioneil 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.
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