Twenty years on……how do we treat one another in private and in public ?

2014-06-06 08:11

Twenty years into our democracy, one of the questions that I am wont to ask is how do we, as individuals treat one another in our private and public interactions. Do we strain ourselves to be politically correct as we address someone of another race,religion or culture or do we subscribe to the prescripts of the Constitution of our country that urges us to respect everyone’s right to freedom,equality and human dignity, three of the foundational values that constitute a seamless web that inform all other conduct?

A judge of the High Court, (Gauteng Division, Pretoria) on 4th June 2014, raised some very serious issues regarding the above during what would have been on otherwise routine exercise of passing judgment in an application for judgment. He raised ‘disquiet about the contents of the sheriffs’ returns of service in three applications’ that came before him.

When documents are served the sheriff of the court is obliged to state certain details in his ‘return of service/ which is filed in court as proof that the applicant has complied with the requirements under law. In these cases there is no mention of the marital status or surnames of the persons ( all indigenous Africans,I may add) who were domestic assistants upon whom, in the absence of the , say defendant were served.

One thing is clear, though - all of them are indigenous African women. Two things would have happened during service of the documents. Either the deputy-sheriffs never bothered to enquire from the recipients as to their marital status or surnames, or having made such enquiries, the sheriffs decided to ignore those particulars for the purposes of the returns of service. Either way, the judge found that the conduct was “decidedly undignified, demeaning, and in clear violation of s 10 of the Constitution, which guarantees everyone the right to inherent human dignity and the right to have their dignity respected.”

Its worth reminding that the Constitutional Court has identified human dignity as one of the two ‘most important of all human rights, and the source of all other personal rights’.

Its worth quoting verbatim what the learned judge said:

“As a nation, we emerge from a disgraceful and painful past, where an irrational system of institutionalized racism was visited upon indigenous African people, where adult African women and men were contemptuously (and still are, in some instances) referred to as ‘girls’ and ‘boys’. The contents of the returns of service in these matters are reminiscent of that era, and conjure up deeply painful memories for the majority of the citizens of our country. It does not help that in two of the present matters, the deputy-sheriffs who served the documents appear to be white men.”

And yes, it is mostly indigenous African people who are the subject of such mode of address in returns of service.

The discernible mindset in the returns of service referred to above, certainly has “no place in an open and democratic society premised on the foundational values of human dignity and respect.” The sheriffs perform a critical task in the administration of justice, and thus have an abiding duty to treat everyone with dignity, irrespective of their race or social standing.

This is a judge expressing disquiet in the manner in which indigenous Africans are treated in a private domain and, the learned judge, whose angst and disquiet I share and support, I wonder how deep and riveted is this practice elsewhere in the private as well as public sphere? Is there any difference,I wonder?

Just as the learned judge said “the side bar” meaning lawyers, should also be conscious of its duties, and decline to accept returns of service couched” in the manner referred to above, so should we in the broader civil society.

I acknowledge and concur that it is not good enough for attorneys or anyone for that matter, “to shrug off their shoulders and say they have no control over the contents of the sheriffs’ returns or actions. Of course they have. Everyone has. You and I too!

The sheriffs act on their instructions, and for that reason, the attorneys have a duty to ensure that returns of service, are properly worded. We are all enjoined to infuse a constitutional ethos.

You and I, cannot be dismissive of this. This is in no way placing form above substance, nor am I being pedantic. It is about a constitutional right which has being violated. Speaking for myself, both as a layperson and a lawyer we as claimants of the rights and values enshrined in the Constitution, can ill-afford a supine attitude in the face of perpetuation of an injustice, which is a relic of the past.

You should read up about this in the website of www.saflii.org.za and the citation is

Standard Bank of SA Ltd v Caster Transport CC and Others; In Re: Absa Bank Ltd v Zayd and Another; In Re: Absa Bank Ltd v Zuma and Another (13700/2012, 4444/2014) [2014] ZAGPPHC 629 (4 June 2014)

Saber Ahmed Jazbhay

6.6.2014

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