22 March 2015 – In apartheid South Africa, any white person was entitled to stop a black person and demand that they produce their pass book, which every black person over the age of 16 was required to carry. These pass books were known as dompas, which translates literally as “stupid pass”. The belittling and degrading documents were a means to control the movement of Africans in an appallingly racist society. Failure to produce this document on demand could lead to arbitrary arrest and detention.
Such practises have long since been abolished. Despite this, a small town in the Western Cape by the name of Worcester, quite clearly nostalgic for the heydays of racial subjugation, now requires African workers and job seekers to travel around with green identification cards. This particular brand of institutional racism in 21st century South Africa was initiated by the Worcester community policing forum with the full backing of the South African Police Services (SAPS). The modern day dompasses even carry the SAPS’ legitimising logo. National Police Commissioner Riah Phiyega confirmed the green cards were initiated in collaboration with SAPS, to control access to specified suburbs. Black workers, such as gardeners seeking employment in these suburbs, had to apply for these green cards to get employment. Those unable to produce the cards on demand are harassed and chased out of the area by the police at the behest of community members.
The events in Worcester are a stark reminder that the rights so many paid a steep price for, in the achievement of South Africa’s constitutional order, are far from being realized. Still, it is necessary to analyse how such a system could be instituted in a country that still mourns the Sharpeville massacre, a deplorable event that was sparked over protests at the apartheid dompas laws. If nothing else, this situation offers an opportunity for a constitutional and legislative study to back up our moral outrage.
The community policing forum is a consultative forum established by the South African Police Services Act 68 of 1995 (pdf) to permit communities to make their policing concerns known to the police. In Worcester, the predominately white affluent community decided that the best way to combat crime was to regulate the movement of the less affluent black people in their town and implemented their prejudice through their community policing forum. While section 18(1)(f) of the SAPS act allows the police to liaise with the community policing forum to promote joint problem identification and problem-solving by the community and the police, the act makes no provision for them to accommodate racist bigotry by implementing unconstitutional policies.
The Worcester situation is not an isolated incident. It is indicative of the often unhealthy collaboration between police and community policing forums, which use their status to encourage discriminatory acts against the most vulnerable sectors of society through state institutions. State institutions are meant to work for every sector of society, and not exclusively serve the agendas of the most privileged members. They should be working towards remedying disparities caused by a history of systemic discrimination, and not further entrenching a hierarchy of privilege and disadvantage by being complicit in implementing clearly unconstitutional policies such as the new dompas system.
As to why the policy is unconstitutional, the enquiry would begin with a look at the Constitution of South Africa (pdf). The preamble opens up with the words:
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land,
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
Quite clearly no one in the Worcester community policing forum or their local police force is bothered by any of the ambitions or proclamations contained in that paragraph. They are also unlikely to be bothered by the numerous rights in the Constitution their policy directly infringes. The first amongst these is the right to equality as outlined below in section 9(1) of the Constitution:
Everyone is equal before the law and has the right to equal protection and benefit of the law.
The right to equality includes the full and equal enjoyment of all rights and freedoms. The Constitution also lists a number of grounds on which the state (including the police) and any person (or community) are precluded from unfairly discriminating against anyone. Those grounds include race, ethnic or social origin. Discrimination based on one of the listed grounds is presumed to be unfair in terms of section 9(5). The is so even where the discrimination is “indirect” — in other words, where the law draws no express distinction on the basis of the listed ground, but its effect is nevertheless to impose a burden on a particular racial (or other) group. A policy that seeks to justify restrictive, degrading conditions imposed on a class of people that can be identified based on their race, ethnic or social origin — as gardeners and domestic workers clearly can be — is therefore be presumed to be unfair discrimination.
It is important to note that not all differential treatment amounts to unfair discrimination. In Barnard, the Constitutional Court recently reiterated the Constitution’s transformative mission to achieve substantive equality. The courts therefore approach the issue of equality sensitive to the country’s history and past injustices and the current power relations in society. In this case, of course, those factors greatly compound, rather than alleviate, the problem.
Aside from equality, the policy also violates the right to human dignity guaranteed in section 10 of the Constitution. The dompas system enshrines the notion that a certain class of people are in some way inferior, and the constant monitoring it dictates is humiliating. It also makes a basic assumption that black people are criminals until they are proved otherwise.
Finally, the system infringes the right to freedom of movement guaranteed in section 21 of the Constitution, since it imposes restrictions on their entry to affluent areas. As Pierre de Vos also argues, requiring green cards for job seekers and workers to access employment is a violation of the right of citizens to choose their trade, occupation and profession freely and the right to fair labour practices guaranteed in section 22 and 23 of the Constitution respectively, and breaches section 6 of the Employment Equity Act which prohibits unfair discrimination.
The test for what amounts to unfair discrimination by a state body (such as the police) was set out in Harksen by the Constitutional Court of South Africa. It is a three-pronged enquiry that seeks to first establish whether the policy makes a differentiation that bears a rational connection to a legitimate government purpose. The suggested purpose of the dompas in Worcester is to protect the community from criminal elements by distinguishing between the “good blacks” and the criminals. It would be insulting to legitimise bigoted views by analysing whether there is any rational connection between the racist perception of African people as criminals and the narrow-minded goal of the police to offer an exclusive perceived form of protection to the affluent community of Worcester through dompasses. So the enquiry ends: if the differentiation is irrational then it follows, without more, that it is unconstitutional.
But if, somehow, the system were held to bear a rational connection to the prevention of crime, then the second inquiry arises. This is whether the differentiation amounts to discrimination which is unfair. The Harksen test has now been codified in section 14 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (pdf), in which the legislature lists the factors to take into account to determine fairness. These include the context of the discrimination, the impact or likely impact of the discrimination on the complainant, the position of the complainant in society and whether he or she belongs in a group that suffers from patterns of disadvantage. The context in this case is that a new version of the vilified pass laws of apartheid is being implemented against a previously and presently disadvantaged group in a province that is still racially segregated after centuries of discriminatory laws. Such laws separated races territorially and set the climate for a province currently dominated by racial undertones and attitudes.
The last stage of the enquiry into unfair discrimination is whether it can be justified under the limitations provision. Specifically, section 36 of the Constitution allows for the limitation of rights only in terms of a law of general application to the extent that such a limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The factors used to consider whether a limitation would be justifiable include the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose. In Makwanyane the Constitutional Court stated that determining reasonableness in this regard required weighing up competing rights and an assessment based on proportionality. For the reasons already given, it is hard to see what competing interests are at stake here. In any event, there are many ways of fighting crime, which must be proportional to the rights they may infringe. Weighing the four rights outlined above against any competing right or interest one might use to justify the dompas system would lead to the inevitable conclusion that this form institutionalised racism is unconstitutional.
The detailed legislative and constitutional outline is not necessary for any rational individual to realise the abhorrent system currently in place in Worcester has no place in a modern society built on democratic principles, equity and fairness. As a country facing the lingering legacy and current reality of racial bias and exclusion, we must loudly condemn the resurgence of antiquated relics of apartheid in defence of the strides we have made towards an inclusive society. Anything less would serve to disrespect the value of the lives lost and the effort put into reconciliation in our quest for the realisation of a rainbow nation.