The South African constitution; An international joke

discrimination

dɪˌskrɪmɪˈneɪʃ(ə)n/

noun

the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.

The South African constitution

Chapter 2 – section 9.2: Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed Chapter 2: Bill of Rights 6 to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken

i.e. People who were unfairly discriminated against, may be protected or advanced (read they can discriminate) in order to rectify the wrongs of the past.

….

Chapter 2 – section 9.3: 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.

and

Chapter 2: section 9.5: Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair

 

The South African constitution makes provision for the protection of the freedom and security of individuals. It clearly and extensively details the rights that were lost to the majority of citizens (non-white) under the apartheid government.

It could be said that the new constitution tries to correct past wrongs by removing the ability of one group to discriminate against another group.

But it allows fair discrimination.

What is fair discrimination?

What is unfair discrimination?

Discrimination is not defined in the constitution, nor how to determine whether it is fair or unfair. So basically, we have left it open to our neighbours, the police and ultimately the courts to decide whether somebody is unfairly being discriminated against. And the judges are semi political appointees.

So the long and the short of it is, your rights as an individual are protected, unless a judge feels that infringing those rights is done fairly, which is not defined and up to their own opinion.

What does that mean practice? Well, look at what the constitution protects and then see what it means if it decides to discriminate against you because it is a fair thing.

The constitution protects your human dignity, your life, your equality to other humans, your freedom and security, your privacy, your right to express yourself, political rights, citizenship, freedom of movement, residence, trade occupation etc.

This means that if the government decides to revoke any of those rights in your personal case, you have no legal recourse. All they have to do is “prove” that those rights have been suspended in pursuit of correct a past wrong (i.e. the discrimination is fair)

So herein lies the crux of all problems in South Africa.

No citizen, minority or majority, can feel comfortable that you won’t be fingered in a Kafkaesque action by the government and legally be deprived of your rights (think your property, your citizenship, jailed, gagged, etc) provided that government deems their own action fair discrimination.

What is the use of a contract that contains contradictions and open-ended interpretation? The constitution basically provides a cover for any South African government to occupy the courts with arguments substantiating their actions (immoral and unfair maybe, but certainly not illegal).

Beware foreigners who buy houses in South Africa,  businessmen who set up manufacturing in good faith or international lenders. You might lose everything if the ruling ANC party decides to label you as fair game to rectify the wrongs of the past, whatever their underlying intention.

You cannot go to the criminal justice system, because it is not a crime for the government to take your property, your liberty or your life, if you have been deemed fair game.

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