De Jure Housing Segregation in the United States and South Africa: The Difficult Pursuit for Racial Justice

Abstract

The thesis of this article is limited but quite relevant. The United States Constitution empowered the Supreme Court to ensure equal treatment under the law for all Americans. In some instances, the Court has interpreted the due process and equal protection clauses of the fourteenth amendment in a manner that afforded some protection against certain aspects of de jure racial segregation. On the other hand, the South African Constitution severely limited the judiciary's ability to protect the civil rights of black South Africans. The exercise of the judiciary's power was interpreted by the South African Supreme Court in a manner, similar to that displayed by many American state courts, that has permitted de jure racial housing segregation.

Implicit in this article's thesis is that a new South African Constitution, authorizing the power of judicial review and containing a prohibition against housing discrimination similar to the provision embodied in the fourteenth amendment, will help to ensure the equality of opportunity in housing of all South Africans. But more importantly, it is essential that such a constitution be enforced by a racially pluralist judiciary that will be careful to avoid the rationale of prior jurisprudence that assumed that blacks could be treated differently from and unequally to whites. A meaningful constitutional revision without an enlightened racially pluralistic judiciary committed to equality of opportunity for all South Africans will not assure black South Africans of even the limited protection against housing segregation that some black Americans have received.

This article examines the legal challenges to de jure racial housing segregation in the United States and South Africa. In so examining, this article discusses the relevant housing statutes and cases and compares both the similarities and differences in approach, response, and result. This article first discusses the relevance of a comparative analysis of American race relations law and the South African system of apartheid. Section III discusses residential segregation in South Africa while section IV examines such segregation in the United States. Section V analyzes the similarities and differences between the two legal communities. Finally, section VI concludes by suggesting a response to the continuing de jure racial housing segregation in South Africa.

Keywords: housing; segregation; comparative law; South Africa

JEL Classification: K19, K33, K39, K49, J78, J79