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.