Addressing Xenophobia in the Equality Courts of South Africa

Abstract

South African society bears a legacy of inequality and struggle against oppression. In the Constitutional era, our courts have held that the right to equality is a core fundamental value against which all law and state practice must be tested. South Africa’s Equality Courts have been heralded as a transformative mechanism for the redressing of systemic inequality and the promotion of the right to equality. Following the aftermath of the 2008 xenophobic attacks in South Africa, the University of Cape Town Refugee Law Clinic, on behalf of some of the victims of these attacks, launched equality claims against the South African Police Services in order to address the unfair discrimination and xenophobia of police officials in protecting these victims. This paper reviews the two matters launched by the Clinic in the Equality Courts, examining the challenges that effectively reduce the accessibility of the Equality Courts and the difficulty inherent in proving discrimination in equality claims, and commenting on the benefits of using these courts to address xenophobia.