Introduction
This comment is made on the assumption that all legislation adopted by Parliament is intended to improve the quality of life of all South Africans by fostering economic growth, peace and justice for all. The Preamble to the Constitution states its intentions to, amongst other things: “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law” and “Improve the quality of life of all citizens and free the potential of each person”.
Parliament is duty bound to take the contents of the Preamble to the Constitution into account in deciding whether to approve Bills that come before it. Does the “Equality Bill” result in citizens being “equally protected by the law” and will it be consistent with the concept of an “open society”? The Bill does not pass that test and is consequently contrary to the spirit and the provisions of the Constitution.
Equality before the law
Different citizens and alternative forms of activity must be treated impartially by the law. Some citizens should not be singled out for either preferential treatment or harsh treatment merely because they are considered by government to be of greater or lesser importance or for any other reason. Such even-handed treatment is absolutely necessary for the rule of law to prevail. It is also essential if a free and open society is to eventuate.
The rule of law requires that government should enact only such laws as are general in nature, are applicable to everyone including itself, and which do not attempt to bring about particular outcomes. The rule of law was described by Nobel Laureate Friedrich Hayek in his book The Constitution of Liberty:
The conception of freedom under the law … rests on the contention that when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free. It is because the lawgiver does not know the particular cases to which the rule will apply, and the judge who will apply them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule. Because the rule is laid down in ignorance of the particular case and no man’s will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by “law” we mean the general rules that apply equally to everybody.
The rule of law has never applied in South Africa
In South Africa, for centuries, lip service has been paid to the rule of law, and this was especially true of the half century prior to the installation of the country’s first democratic government in 1994. If the rule of law had really applied, apartheid could not have occurred as the courts would have struck down all discriminatory legislation.
Considering the shameful past, a wise and far-seeing government should now ensure that South African legislation and administrative practice never again discriminates against some citizens in favour of others. Peaceful citizens would not be compelled to associate with anyone, or be prohibited from associating with anyone. Remembering the bitterness and disharmony caused by past practices, a just government would not want to continue those practices. They would not want to perpetuate a divided society.
Proper application of the rule of law is essential for the creation of a great society
Present legislators should realise that they are creating the environment that will shape the future. They have important fundamental decisions to make if they wish to ensure that the next generations will inherit a country of which everyone can be proud – a country that is harmonious and productive and has a dynamic economy. Government’s most important function is to protect people and their property from violence, fraud and theft and to act as an arbiter in disputes. In carrying out that function the democratic government of South Africa must attempt to build a body of law designed to grant true liberty to a people that has never experienced it.
Anger over the past creates a temptation to use the power of the law to take some form of revenge. Yet anger and revenge embodied in unjust legislation will not produce liberty, not for the people who suffered in the past, and certainly not for the generations to come. Rather, it raises the danger that unjust laws will become a habit and that injustice will be heaped upon injustice for the very people who have suffered most.
Equality
Individuals have different talents, abilities and interests. They are born different and exercise their choices differently. To be different does not mean superiority or inferiority, it merely means not being the same. No law can change this. Legislation that attempts to make people equal will necessarily have to treat people unequally and this is what the Equality Bill does. For example, an intendent partner is to be allowed to demand that a partnership takes her/him in as a partner, denying freedom of choice and freedom of association and disassociation to the partnership. The provision in the Bill therefore obviously discriminates against partners and is contrary to the Constitution in that it negates the section that guarantees equality before the law.
The proposed Bill cannot succeed. If, for instance, legislation were to attempt to make Hansie Cronje and Frankie Fredericks equal over 100 metres on the track it would have to provide that lead weights be tied to the sprinters’ legs. On the other hand, trying to make Frankie equal to Hansie on the cricket field would be impossible. No amount of legislation and discrimination against Hansie would make them equal in bowling, batting and fielding. However, if legislation attempted to do the impossible, it can be predicted that Frankie and Hansie would end up hating each other, and they would either give up their respective sports or go somewhere else where they were not being interfered with. And if the response to that proposition is “good riddance” then this country is going to lose a lot of talented and able people.
Liberty
A false assumption in this Bill is that it is good for blacks and women and bad for white males. On the contrary, anything that destroys or detracts from individual liberty is bad for the whole nation. It is equality before the law that allowed certain nations to rise out of the squalid poverty and misery they lived under for centuries. Most people forget that it is only in the last 300 years that ordinary people in what are now the most advanced countries have gained any degree of liberty. And the crucial factor in their liberation was equality before the law.
As Professor Hayek said elsewhere in his book The Constitution of Liberty when discussing equality and liberty:
Equality of the general rules of law and conduct, however, is the only kind of
equality conducive to liberty and the only equality which we can secure without destroying liberty. Not only has liberty nothing to do with any other sort of equality, but it is even bound to produce inequality in many respects. This is the necessary result and part of the justification of individual liberty: if the result of individual liberty did not demonstrate that some manners of living are more successful than others, much of the case for it would vanish.
Conclusion
South Africa can become a great country. It can lead the African Renaissance that President Mbeki speaks about. But it will not do so if it continues to produce legislation that is overtly or covertly racist. South Africa must show to the rest of Africa and the world how a nation that has been weighed down by bigotry and racism can rise above these scourges. The route to a free and prosperous nation lies in equality before the law and economic freedom. This is necessary, not so much for the present adult population of this country, carrying the hurts, shame and grudges arising from our history, but for the youth who will hopefully grow up unscarred, future-oriented, confident and without bias.
Eustace Davie
Director, Free Market Foundation(/i>
