Public Interest Litigation of the Rights of Women in South A

Public Interest Litigation of the Rights of Women in South Africa

Michelle O’Sullivan, Women’s Legal Centre, Cape Town, South Africa

The Women’s Legal Centre (WLC) is a constitutional and public interest law centre based in Cape Town in South Africa established in 1999, just over four years ago. The activities of the Centre include test case litigation, advocacy and legal opinion work for NGOs focusing on women’s rights. Where we have sufficient capacity, we do training too.

One of the areas that the Centre focuses on is equality or unfair discrimination cases. I will be speaking today about my experiences litigating unfair discrimination cases in the South African context. Firstly, a note of caution. This is an evolving area in South Africa and I am by no means suggesting that we have mastered it. In fact, the track record of the Constitutional Court in South Africa to date reveals that there are very few opportunities for poor litigants and in particular, poor black women to bring their cases to the court. South Africa also exists in a unique and different context to Russia. Although under apartheid we experienced levels of repression in our society and the law was used as an instrument of the state, the integrity of the judiciary to some small degree remained intact in South Africa. There is also a pre-constitutional or pre-democracy history in South Africa of using public interest test litigation to advance human rights, using the courts under apartheid.

There is some distrust of our legal system and parallel systems of community-based street committees exist, for example, that provide people with some recourse to community justice (or sometimes injustice). But at a local level there has been increased use of the court system, both civilly and criminally in the last eight years. This is assisted by the many laws and policies that have been introduced in South Africa within specific areas of law and specific sectors such as domestic violence, maintenance and access to information. I will later address the constitutional framework for unfair discrimination cases and also our legislative framework.

Women’s socio-economic inequality in South Africa[1]

Although South Africa is an upper middle income country in per capita terms, most households experience deep levels of poverty and continuing vulnerability to being poor. We have unequal income distribution and many people lack access to adequate housing, education, healthcare services, social security and sufficient food and water. Our legacy of colonialism and apartheid continues to haunt us. Redressing poverty and inequality is not only a major developmental challenge for South Africa but lies at the heart of our new constitutional order which is based on the values of human dignity, freedom and equality.

There is a close overlap in South Africa between poverty and race. Ninety five percent (95%) of South Africa’s poor are African and less than one percent (1%) are Indian or White. Poverty and inequality also have strong gender dimensions in South Africa with Black women being particularly disadvantaged. In 1998, the unemployment rate for the country as a whole was thirty seven percent (37%), but women had an unemployment rate of forty five percent (45%) compared to thirty one percent (31%) for men. The unemployment rate for African women was particularly high, at fifty five percent (55%). South African women often take primary responsibility for childrearing in the household. As a result, their ability to participate fully in the economy and society as a whole is severely restricted. “A large number of South African households—as many as forty one percent (41%)—are women-headed and these are generally poorer than male-headed ones. Large numbers of women live without the fathers of their children and bear primary responsibility for these children. Often because of high rates of teenage pregnancy, the actual carers of these children are grandmothers or other female relatives. Most women in South Africa earn no or very limited income. Only forty six percent (46%) of South African women over the age of fifty are economically active as opposed to sixty three percent (63%) of men.[2]

Women generally work in highly vulnerable jobs, such as domestic, casual or seasonal work. Gender-based discrimination also makes it more difficult for women to gain access to credit for small businesses, housing finance and productive resources such as land. Women are disproportionately affected by a lack of access to social services in South Africa because they bear a disproportionate burden of household maintenance. This also makes it difficult for them to participate equally in government structures. Many African women are disadvantaged by discriminatory rules of customary law, which were codified by the colonial and apartheid rulers and have not evolved to keep pace without a changing social context. Although women married under customary law are no longer legal minors or subject to their husband’s guardianship and their marriages are recognised in law, customary marriages entered into before November 2000 are out of community of property and generally leave women with limited assets when those marriages end. The Customary Law of Inheritance, which I will discuss, is a particular problem in South Africa. Women married through Muslim rites and those in domestic partnerships whose relationships are not afforded any legal recognition are also extremely vulnerable when their relationships end.

These social gender-based inequalities are compounded by extreme levels of violence against women in South Africa. Violence against women is another of the project areas of the Women’s Legal Centre—in our first four years the majority of cases addressed this issue. It is difficult in a society with such endemic levels of violence against women to address more developmental issues, such as unfair discrimination in women’s access to state resources, when women are struggling with a daily fight for survival.

The HIV/AIDS pandemic is another critical factor undermining women’s socio-economic equality in South Africa as women are disproportionately affected by it—there is a higher prevalence of HIV infection amongst women due to their increased biological and social susceptibility. There is pervasive discrimination in South Africa against people who are HIV positive or who have AIDS, sometimes resulting in evictions, loss of employment, violence and even death. It is also primarily women who have to cope with the consequences of mother-to-child transmission of HIV and the care of AIDS orphans. There has also been a real decline in social spending in South Africa as a result of economic policy adopted by our government. Women are disproportionately affected by this because of their responsibility for child care.

In many instances, the problems in South Africa lie not with the actual content of the various laws and policies—which correctly target disadvantaged groups such as Black women—but with their implementation. These barriers are complex and range from inadequate budgetary allocations to capacity deficits, complex regulations, lack of knowledge about rights and inadequate infrastructure.

South Africa’s constitutional and legal framework for “unfair discrimination”

Section 9 of the Constitution of the Republic of South Africa prohibits unfair discrimination. Its provisions are as follows:
9 Equality

1. Everyone is equal before the law and has the right to the equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

The Constitutional Court, in Harksen v Lane[3], summarised its approach to the interpretation of the right to equality under section 8 of the Interim Constitution.[4] The Court has ruled that this interpretation is equally applicable to Section 9 of the 1996 Constitution, notwithstanding certain differences in the wording of these provisions. The stages in the enquiry are:

(a) Does the provision differentiate between people or categories of people. If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to “unfair discrimination”. This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is a discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
(ii) If the differentiation amounts to “discrimination”, does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

In order to determine whether or not the discriminatory provision has impacted on the complainant unfairly, various factors must be considered. These would include:

(a) The position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not;

(b) The nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving worthy and important societal goals, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of that particular case, have a significant bearing on whether the complainants have in fact suffered the discrimination in question.

(c) With due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature.

Under the Constitution, this is not the end of the enquiry, as the respondent still has a further opportunity to seek to justify a finding of unfair discrimination under the general limitations clause (Section 36).

The constitution also contains socio-economic rights including access to housing, land, social security and health care services For example:

26 Housing

(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27 Health care, food, water and social security

(1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

In developing the test for unfair discrimination under the constitution, the Constitutional Court has developed jurisprudence that is particularly relevant to disadvantaged women in South Africa. However, I must mention that the jurisprudence developed has largely been in the context of claims bought by relatively advantaged groups. The court has yet to consider an equality claim brought by disadvantaged Black women. However, we hope that a number of the cases litigated by the WLC will reach the court this year. The court has been at pains to assert its commitment to a jurisprudence of substantive equality in which the primary issue is the impact of the measure and not whether it treats everybody the same. The court has also recognised that insisting upon equal treatment in the conditions of established socio-economic inequality in South Africa may well result in entrenching that inequality. It has emphasised that in assessing equality claims it must take into account our history of apartheid as well as other systemic patterns of disadvantage including sex and gender discrimination. Constitutional Court Judge O’Regan said the following in this regard:

“Although our history is one in which the most visible and most vicious pattern of discrimination has been racial, other systematic motifs of discrimination were and are inscribed on our social fabric … Although in our society, discrimination on grounds of sex has not been as visible, nor as widely condemned, as discrimination on grounds of race, it has nevertheless resulted in deep patterns of disadvantage. These patterns of disadvantage are particularly acute in the case of Black women, as race and gender discrimination overlap. That all such discrimination needs to be eradicated from our society is a key message of the Constitution.”

The Court has recognised that the grounds of discrimination may intersect and overlap and this may pave the way for considering the particular nature of inequalities experienced by Black women who are living in poverty. The crux of the enquiry under section 9 is that into unfairness. The court has sought to incorporate contextual facts that are sensitive to the circumstances and needs of disadvantaged claimants, the nature and purpose of the challenged measure, and the impact of these measures on the complainants. Thus the purpose of equality is to improve the position of disadvantaged groups and not to perpetuate the privileges of the advantaged. The court has noted that a purely negative model of equality will fail dismally in advancing the position of disadvantaged groups. Positive measures are essential to ensure that disadvantaged groups such as poor women will enjoy equal access to resources, services and opportunities. In the first instance, section 9(2) expressly permits positive measures or affirmative action measures which are shielded from unfair discrimination attacks by advantaged groups. Secondly, a failure to take positive measures can, under certain circumstances, amount to unfair discrimination. Thus unfair discrimination can result not only from conduct but from a failure to take steps to ensure that disadvantaged groups benefit equally from social rights such as jobs, education, housing, medical care and social security.

The test set out in Harksen v Lane is used to determine cases of unfair discrimination by the state against individuals.

However, the constitution requires that national legislation be enacted to give effect to the right to be free from unfair discrimination and to equality in all spheres of our society between persons. In this regard, South Africa has passed a lot of legislation, which includes the Promotion of Equality and Prevention of Unfair Discrimination Act. This was passed in February 2000 by parliament to give effect to section 9(3) of the constitution in all sectors of our society, where there is no other legislation that applies. However, this legislation has unfortunately not been brought into operation and its regulations are not yet finalised. Significant training has been conducted with magistrates / judges in preparation for implementing the legislation and we hope that it will be brought into effect early this year. Other legislation which entrenches section 9 include the Employment Equity Act which outlaws unfair discrimination in the employment sector, the Medical Schemes Act which outlaws certain types of discrimination in medical schemes and the Rental Housing Act.

Standing and class actions
The Constitution and the Equality Act, which I will discuss below, allow a person acting on behalf of another person who cannot act in their own name to come to court. For example, a group may not be able to come to court because of their location or lack of access to resources. It also allows for a person acting as a member of or in the interest of a group or class of persons to bring a case on their behalf. This allows for a class action where a person can bring an action on behalf of a class of persons with the same complaint, even if she is not a member of the group concerned. Courts and litigators have to ensure that a group or class has been properly constituted through proper notification and that everybody within that class has been given an opportunity to join the action. The other option available is any person acting in the public interest may bring a case—unlike a class action, a public interest action does not bind the members of the particular group under the res judicata doctrine, and there is less worry of infringing upon individual rights.

For public interest litigators, it is often useful where possible to bring a class action or a public interest action, as this also resolves the problem of a settlement with individual complainants and the case disappearing. It would allow for a situation where the state is able to settle with a particular client but the case as a whole would proceed. Our courts have recently looked at this issue in a case called Ngxuza & Others v Permanent Secretary, Department of Welfare, Eastern Cape and Another 2001 (2) SA 609 (E).[5] This case concerns the suspension of social grants in the Eastern Cape Province where payment of disability grants was stopped during 1998, without any reason being given, without notice and without the beneficiaries being given an opportunity to make representation. Concerted efforts to deal with the problems of the delays in payment and cancellations through cooperation and agreement were fruitless. The applicants sought on their own behalf and on behalf of many others in the province who were said to be in a similar position a declaration that the cancellation or suspension of the grounds have been unlawful and an order for retrospective reinstatement of the grants. The respondents disputed the individual applicants’ standing to act on behalf other persons. The court held that there was no justification in public law litigation for a restrictive interpretation of the section in the Constitution dealing with standing. A wide range of persons might be affected by litigation and the emphasis would often not be only on redressing past wrongs, but also on ensuring the future exercise of public power. This is in accordance with the principles of legality.

Although the court acknowledged that the problems associated with such litigation including ensuring that only those who wished to be were involved, that those wishing to be involved were given the opportunity to make such representations, and that the party representing the case adequately represented future interests, all that these required were safeguards to ensure the broadest and most effective representation in the presentation of public interest litigation. The evidence in the case showed that many persons in circumstances similar to those of the applicants were unable to pursue their claims individually because they were too poor, or did not have access to lawyers, and would have difficulty obtaining legal aid. They were effectively, unable to act in their own name. The court requires this flexible and generous approach to make it easier for disadvantaged and poor people to approach the courts on public issues and to ensure that public administration adheres to the fundamental constitutional principle of legality in the exercise of public power. As the persons who could not act on their own behalf were known to the government, the judge found that they had standing under section 38(c) of the constitution.

The role of civil society organizations

In South Africa, we identified a need for a gender organisation to focus specifically on public interest litigation to advance women’s equality. It was felt that within a general human rights organisation conducting litigation, there are often competing claims between different areas of the law, such as children’s rights or detainees rights, and it is difficult to establish a concerted and sometimes radical programme to advance gender equality through litigation. In addition to anti-discrimination cases, the Women’s Legal Centre has identified the following areas of priority:

1. Violence against women;
2. Access to resources (this includes housing, land and healthcare);
3. Customary law and religious laws.

Advocacy conducted by the WLC generally works hand in hand with our litigation. Section 9 of the constitution offers us an opportunity to go to the Constitutional Court and to challenge the constitutional validity of legislation, in those cases where we succeed and the court orders a declaration of invalidity, the legislation is referred back to parliament for new legislation to be enacted within a specific time period. It is often essential to put as much energy into the development of the new legislation enacted that follows the case as the case itself. In some cases it is more worthwhile to actively pursue law reform rather than litigation. Courts are often used as a last resort for government’s failure to implement properly their policies or existing legislation. Anti-discrimination law is a new area in South Africa and in my view these are the most difficult cases that the Centre has had to take on.

Source of equality cases
Many of our cases are referred to us by university law clinics, paralegals and women’s organisations. We take cases on behalf of individuals and act on behalf of organisations who work in and have developed expertise and credibility in a particular area. In other cases where there is not an appropriate organisation, we act in our own name. We take cases to court from start to finish, but we also intervene as amicus curiae (friends of the court) in appropriate cases. Our litigation is often most successful in terms of creating awareness in the public sphere when we are assisted by a supportive NGO partner. This also assists with broader advocacy in relation to the case and publicity as the NGO partner is often in a position to make statements in the press that are not appropriate for the attorney litigating the case to make. However, we have also found it important, if we are representing another organisation, to acknowledge that the Women’s Legal Centre has a particular view which we bring to the case as public interest litigators—and also to acknowledge that when developing legal strategies in anti-discrimination cases.

This issue arose in a case heard in March by the Constitutional Court, Jordan, which concerned decriminalisation against a sex worker, where one of the organisations we represented intervened as amicus curiae—an organisation called SWEAT (Sex Worker Education and Advocacy Taskforce). During the preparation of the case, we suggested it should be brought as an equality case because of the discriminatory manner in which the Sexual Offences Act is applied to target sex workers rather than their clients. However, our client was of the view that an equality argument carried an inherent risk—that the law could be read as targeting both sex workers and clients—and that this might be problematic for law reform, hopefully due in the next couple of years. They were concerned that any pronouncements from the court stating that the law had to be applied in a uniform manner to target both clients and sex workers would create additional vulnerability for sex workers. Ultimately, the minority decision held that there was an infringement of the equality right based on the unequal application of the Act, and indirect discrimination suffered on the grounds of gender and sex. But the majority of the judges on the court held that there was no infringement of equality rights as the clients of sex workers could be charged as accomplices under the Riotous Assemblies Act. The minority decision suggested that if the law were to target both sex workers and clients for equal criminal sanction, that would pass constitutional muster. This suggests that the fear of our client was justified.

A further issue concerned the economic necessity for many sex workers entering the profession. Our client’s position is that sex workers are autonomous agents who make the choice to become sex workers and, although their range of choices is constrained, their agency nevertheless needs to be respected. It would have been easier to argue in court that the majority of sex workers enter the profession because of lack of choices and that this would have emphasised their status as a vulnerable group. Ultimately, although the court accepted that sex work was a choice from a constrained range of choices, they nevertheless focussed on the fact that sex workers’ status is diminished because of their choice to become a sex workers rather than through criminalisation by legislation.

I use this as an example to highlight the complex relationship between a public interest litigator litigating discrimination cases where the litigator / attorneys have their own perspective on the issues before the court, in addition to the perspective of their client and that these can differ on occasion and need to be mediated.

Working with state institutions for change
Prior to launching a discrimination case against the state, we generally adopt an approach of trying to work constructively with the relevant government department to assist them in identifying and remedying the wrong that has resulted in the unfair discrimination. This often gives our client an individual remedy as well as having a broader impact. It is also essential when bringing unfair discrimination claims to be able to demonstrate to the court what steps you have taken to try and get the state to remedy the unfair discrimination prior to litigation. We are presently involved in trying to ensure that women who are beneficiaries of housing subsidies obtain security of tenure and that their houses are registered either in their names or jointly with their husband or partner. We have discovered that, because of historical bureaucracy and the manner in which the Housing Code of South Africa is interpreted, in many cases houses obtained through government subsidies for poor people are registered only in the name of the male partner. We have spent the last year trying to persuade and negotiate with the state to ensure that legislation, policy and implementation accord with the principle of equality and to ensure that women receive equal benefit from housing subsidies. In the event that we do not succeed and we go to court we will be able to place this record before the court.

Strategic aspects of public interest litigation

Retrospectivity/ delays
One problem we face is that although we can seek an order of invalidity from the Constitutional Court in relation to particular legislation, new legislation introduced as a result of litigation is not going to remedy the situation for our particular client—or retrospectively for the group of women she represents. In some cases that we are litigating at present we are trying to use section 39(2) of our constitution, which provides that:

39 Interpretation of Bill of Rights

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Rather than seek a declaration of invalidity, we ask courts to interpret and/or develop our laws and common law in a manner that is constitutional. Good examples of this are provided by the cases we are litigating for women’s inheritance rights. At present in terms of Black law and custom law, Black women, their daughters and illegitimate children do not inherit if their husband/father does not leave a will. Although new legislation may well provide for women married under customary law or Muslim Personal Law to inherit in the future from their husband or partner’s deceased estates, this will not assist our present client community, who are widows often not benefiting from deceased estates. However, in the two cases which we have taken on, we have asked the courts to interpret and develop customary law in a manner that allows wives, girl children and illegitimate children to inherit, and to interpret the existing Maintenance of Surviving Spouses Act so as to allow women married under Muslim personal law to inherit from their husband’s estates.

The reality too is that any court order requires state enforcement, and if you cannot secure that enforcement prior to going to court, the lack of willingness may well continue after the court order for a number of complex reasons. It is therefore most useful to have self-enforcing cases where the state is not required to allocate additional resources to give effect to a particular case.

Delays in law reform
There has been significant delay in law reform in South Africa in the last three years. As a result, we are developing strategies to challenge the constitutionality of the general legislation governing customary law in order that we can get a declaration of invalidity and a time frame for a new law. At the same time we are also bringing cases in order to develop customary law and assist women in these circumstances, and to provide guidance for the development of new customary law.

Challenges of client community
We experience challenges in working with women who have experienced discrimination, particularly in our work on violence against women and sexual harassment, but the same applies to cases involving unfair discrimination. We have experienced the following challenges in working with our clients’ community:
a. Trauma – need for counselling;
b. Poverty;
c. Need for counselling;
d. Outcome may be delayed and only benefit others;
e. Risk of settlement / withdrawing – how to go the long haul;
f. Community pressure;
g. Risk of a costs order when client has only limited assets such as a state subsidised house

Role of judges
In South Africa, there is a particular need for judicial education in relation to anti-discrimination cases and its social context—especially in relation to cases brought in terms of the Constitution and cases which will be brought in future under the Promotion of Equality and Prevention of Unfair Discrimination Act. Where specific sectoral legislation exists, such as the Employment Equity Act in the Labour sector, there is also a need to train judges hearing unfair discrimination matters as these differ so vastly from ordinary unfair dismissal cases. It is also essential to have mechanisms for judicial accountability. The constitution establishes a Judicial Services Commission to hear complaints about judicial misconduct. Similarly, the Magistrates Commission hears complaints relating to magisterial misconduct.

Burden of proof
Our anti-discrimination legislation, the Promotion of Equality and Prevention of Unfair Discrimination Act, has been tailored to address many of the pitfalls that have been identified in other jurisdictions in relation to litigating discrimination cases. So for instance, our legislation alters the burden of proof for ordinary civil claims. The onus is placed on the litigant alleging discrimination to make out a prima facie case and the onus then shifts to the alleged discriminator to demonstrate that they have not discriminated unfairly against the complainant or that they have another defence within the legislation. The remedies available in discrimination cases have also been extended to include preventative type remedies such as preventative damages or making orders directing the discriminator to take steps to ensure that the discrimination does not occur more broadly.

Causes of harm
One of the questions that we are often asked in our cases by judges is whether they need to find that the discrimination was the sole cause of the harm suffered by the complainant. In many discrimination cases, there are a number of factors which may result in harm and we have argued that it is sufficient that the ground be a contributory cause of the discrimination suffered. We do not have any jurisprudence to this effect in South Africa but we have referred to the case of Owen and Brigg James (1982) ICR 618, (1982) IRLR 502 (CA). We hope that our courts will adopt this approach in our cases.

Conservatism
It is also crucial to ensure that the cases that are brought before courts are appropriate and where issues are contentious and courts conservative, it may be better in some circumstances to go the law reform route. A good example of this is the Jordan case, in which the constitutionality of our Sexual Offences Act relating to decriminalising sex workers was challenged. The innate conservatism of the court was revealed in their judgment and it is a risky strategy to take issues such as sex work to the courts. This case was initiated by a brothel and a group of sex workers and we were merely intervening as amicus curiae. The result of the case has meant that this is no longer a priority law reform area in the same way that it would have been had we obtained a declaration of invalidity from the Court.

Amicus Curiae
Many of the cases that we take on are as amicus curiae rather than acting for parties in the case. We find this a very efficient manner in which to conduct public interest litigation as we can act in the interests of a broader group of women and are not limited to arguing on behalf of the plaintiff. It can be problematic to join a case at the last minute, when lawyers less well-versed in anti-discrimination or only focussing on the best outcome for their client, may have been litigating, perhaps in a manner that makes it difficult to achieve the outcome which we would desire at the Women’s Legal Centre. Nevertheless, this is a very useful way of taking limited resources and having a wide impact in a particular case. If you look at the decisions of our Constitutional Court, many of them have been based on principled submissions by amicus curiae. However, the need for cases to be generated remains—in order to intervene as amicus curiae—but few litigants in South Africa can afford to take on anti-discrimination or unfair discrimination cases particularly with the threat of costs awards hanging over their heads.

Research
We also find it invaluable to work with University research institutes in discrimination cases because of our own limited resources.

In conclusion, I hope that the aspects that I have addressed briefly today are of assistance in developing your own legal strategies to address discrimination in Russia.

Notes

[1] This section is largely from Liebenberg, S. and O’Sullivan, “South Africa’s new equality legislation: A tool for advancing women’s socio economic equality?” ACTA JURIDICA 2001, pp.70—74.[back]

[2] Beth Goldblatt “Litigating Equality—The Example of Child Care” ACTA JURIDICA 2001, p.9. [back]

[3] Harksen v Lane 1997 (11) BCLR 1489 (CC).[back]

[4] Following the end of apartheid, South Africa had an “Interim Constitution” from 1992 to 1996.[back]

[5] Ngxuza & Others v Permanent Secretary, Department of Welfare, Eastern Cape and Another 2001 (2) SA 609 (E).[back]

We welcome your comments