Lawyers for Human Rights
Lawyers for Human Rights

The truth about rights in South Africa

By Iqbal Suleman

Rights ranging from access to land to access to justice are entrenched in our Constitution. These rights are presumed to be available and readily accessible to everyone. The Constitution tells us that we all have equal rights but the reality shows us otherwise.

In a free market economy, nothing is really free. From access to housing, healthcare, education and justice. It all has a price. If you cannot afford it, you cannot access it.

What do you mean justice is inaccessible and market driven, you hear neo-liberals cry. There are human-rights NGOs, legal aid, university law clinics and pro bono attorneys. It remains unsure, though, how many people are able access these mainly urban-centred, rights-based organisations and what capacity these organisations have.

Statistics show us that at least 50% of the population lives in rural areas. So what about the millions unable to access legal services. Two horrors facing the poverty-stricken of our country are job losses and eviction. It is true that a farm worker dismissed in a rural area can refer an unfair dismissal to the CCMA without incurring legal costs but when he is fired, he doesn’t have the money for daily necessities, let alone money to travel to the arbitration process. It is arguable then that he cannot pursue his constitutional rights as a worker.

Legally, a person unable to pay rent cannot be evicted unless given alternative accommodation. The Prevention of Illegal Eviction Act makes it unlawful for a hard-nosed landlord to dump a tenant out on the streets. But how many people know about this right and how many can actually access a lawyer to challenge the eviction in court? Few, if any. So as the old adage goes, a few trees do not make a forest. Rights-based organisations are like a few trees that shine in the dark. They provide free legal services to the poor who cannot afford it. They play an important role in defending the rights of poor but because of limited resources and capacity not enough people are fairly represented. Neo-liberals would have us believe that the few trees make up the forest. They don’t. All of these rights exist within a free-market context. They are commodities. They have a market value. A price. This is the way it is. If you can’t cough up the bucks, then you are out of luck. The propertied and moneyed class can afford the best legal services. The poor cannot. What is on the surface, presented as a level field of justice, is in reality far from it.

A referral of an unfair dismissal can be issued by a worker without the help of an attorney. Workers are mostly under-represented in arbitration. On the other side, employers are always represented legally. According to the Tokiso 2012 Dispute Resolution Digest “employers win approximately 67% of CCMA arbitrations”. This clearly refutes popular perceptions that the Labour Relations Act and CCMA is pro-worker and anti-employer. These statistics are indicative of the uneven power relations between employer and employee. This prejudices the employee from the outset.

Even in the instances where the employer loses, he will delay the legal process and frustrate administrative justice. As a result, even in the rare 23% of cases where an employee swings arbitration in his favour, the employer will take the case on review, knowing the employee does not have the means to challenge it in the Labour Court. Instead of paying the worker what is due, the employer will spend ten times the amount in legal fees because he can. To ensure the worker doesn’t think about pursuing the matter, the employer threatens him with a costs order. In this way, a large percentage of awards which are issued in favour of workers are not enforced. This amounts to paper and procedural justice.

For the working class who are evicted and dismissed on a daily basis, justice in the real sense remains elusive unless we conceptualise justice in the neo-liberal tradition of procedural justice. The truth is that access to justice in a capitalist context is only accessible to the elite. In our country, 50% of the population earns 8% of the national income while the other 50% earns 92% of the national income. This is class apartheid. Most people cannot access legal services. Like the doors to the Palace of the Lost City Hotel are closed to the poor so, too, are the doors of justice.

Iqbal Suleman is an attorney with Lawyers for Human Rights’ Refugee and Migrant Rights Programme.

  • GrahamJ

    It sounds fair to me. According to our wonderful constitution:-

    “[9.]5. Discrimination … is unfair unless it is established that the discrimination is fair.”
    Sounds pretty concrete to me. Not.

    The ANC can do what it likes quite legitimately using these badly flawed clauses. I could drive a steamroller through that one.

  • Mr. Direct

    So, if you and all of your Lawyer friends stopped charging fees for services, then this topic would go away completely.

    How about it?

    No?

    So you and all your lawyer friends are to blame for this – shame on you…….

  • Jack

    “According to the Tokiso 2012 Dispute Resolution Digest “employers win approximately 67% of CCMA arbitrations”. This clearly refutes popular perceptions that the Labour Relations Act and CCMA is pro-worker and anti-employer. These statistics are indicative of the uneven power relations between employer and employee. This prejudices the employee from the outset.”

    A close analyses of labour legislation shows that it is inherently pro-employer. It is actually reasonably simple to dismiss an employee, its just a long process to do so. It is even possible to fire an employee for removing an empty 2lt bottle from the trash and taking it home if there is an no tolerance rule by the employer that no trash may be removed from the premises without permission.

    Labour legisaltion is also tilted in favour of the employer. In disciplinary and dismissal procedures employees are generally not permitted to have legal representaion and this extends to the CCMA. The employers on the other hand have their human resource professionals who are versed in labour law, or may even outsource their human resources to labour consultancies staffed with labour lawyers. CCMA procedures are too complex for the layman, while the employer is represented by trained professionals

    As far as power imbalance goes, well labour relations the world over are based on the principle of master and servant. Our labour dispensation is an evolution of that of master and slave. Imbalance is inherent in the system…

  • Jack

    This is not a neo-liberal issue. The failure is with the state for failing to provide “fair” labour legisation and acess to simple and effective forums for people to have their labour disputes sorted. The CCMA is cumbersome, slow, complex and ineffective.

    “Legally, a person unable to pay rent cannot be evicted unless given alternative accommodation. The Prevention of Illegal Eviction Act makes it unlawful for a hard-nosed landlord to dump a tenant out on the streets.”

    PIE also makes it possible for unscrupulous tenants to abuse a bona fide landlord and hold them hostage with their own property. Banks don’t care whether or not tenants pay their rent, they want their bond payments. This places financial burden on landlords, and could even ruin them. A foreclosed property with an illegal tenant will fetch an even lower price, and that will be offset against the estate of the landlord.

    Don’t blame ‘neo-liberals’ for being able to exercise their rights. Blame the state for failing to provide structures where the poor can exercise theirs.

    A parallel can be drawn with medical care. The state should provide adequate medical care to all. If the state fails in that regard, those who can afford private is not to blame. It becomes a problem when the only source of medical care is private and unreasonable market prices create a barrier to access it.

  • lionel

    I think that you have made broad, sweeping statements.
    You omitted to deal with the rights of the indigent, when it comes to legal representation in criminal matters. The means test applied by the Legal Aid Board means that most middle class people are excluded, and have to conduct their own defence, as legal fees are prohibitive.
    Every mag court has legal aid, so that is a given in this regard. If you took the trouble to check the mag court motion rolls, you would also see that the Legal Aid Board is very active in respect of PIE applications.
    Having said that, I am compelled to agree with you in principal; the problem is ignorance, through lack of education.
    Forgive my ignorance, as I am no longer in private practice, but shouldn’t you guys and the Legal Resources Centre join hands and embark on a programme to educate those who are marginalised?

    Prof McQuoid-Mason’s efforts spring to mind…

  • Theo Marx

    I think the writer got his knickers in a knot with this one. Remind me not to use him as a lawyer.

  • http://www.thegremlin.co.za Bruce

    Our thinking on human rights is fatally flawed. We only have one right – the right to freedom of choice. The rest is all consequence. If you tell a child he/she has the right to a safe living environment, food, clothing, an education etc – all you do is absolve the parents of the responsibility to provide for their children. This is the root of the culture of entitlement.

  • maggielou

    The reason why so many cases fail against the CCMA is because everyone takes a fat chance to try and bleed the employer for that extra buck which they don’t deserve. Many cases are taken up and wasting time and resources because of unjustified demands. High time that companies have the freedom to hire and fire according to their standards and conditions! (within the legal parameters, of course). Dead wood must go and make make room for those who are interested in doing the job and not wanting to be there only for the pay packet.

    It is also time that a landlord can kick out a so called tenant after one month’s non payment. Why should honest people be abused because others are abusing the system? Many can pay up but, because the law allows it, choose to exercise their ‘right’ not to do so.

    I am also sick and tired of these bloodsucking parasites who parade as NGO’s. They’re in it for the huge salaries and perks they claim (note – NOT EARN). They stir and cause more friction and damage to satisfy their own agendas, whilst pretending to help those less fortunate. Before I contribute to any charity or NGO, I make sure to ask for a peep into their financial statements and establish what ‘salary’ the CEO takes for him/herself. In many cases, you’ll be shocked. It is especially scandalous how many of the grants from places like EU, UN etc. are being abused …… I have proof!

  • http://thoughtleader.co.za/llewellynkriel Llewellyn Kriel

    This is what makes all this codswallop about our over-hyped Constitution and Bill of Rights and Freedom Charter and Batho Pele and ubuntu and Citizens Charters and Leads SA and PAIA and CPA and all the other meaningless wordage of no use and less value. They actually mean nothing to us average folks spit-scrabbling out an existence. Yes, these noble documents exist. But we can neither access them let alone leverage them in the ways in which they’re supposed to empower the citizenry. Employers, lawyers, impotent “society groups” and, worst of all, the damned ANC government have no interest in putting these works of art in our hands. On the contrary, they want them to remain as remote and unreachable as the nearest habitable star.

  • Wow

    Like a few trees shining in the dark?

  • Gerhard

    Excellent article and I couldn’t agree more.
    Good example is medical parole for prisoners. Some get parole almost before they stat serving sentence, while others have been known to die in prison while waiting for approval. Need I name names?

  • Gerhard

    All the criticism here is about not agreeing that a particular right should be in place.
    The article is about rights that are not equally accessible to all.
    You guys are raving about a completely different issue.

  • http://www.goldenladder.com.cn francois williams

    I saw a book recently published in the USA…something like, The Law for the 99%…they are the ones in the USA who cannot afford a lawyer…