An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Earlier this week the Government Employees Medical Scheme (GEMS) lost an urgent legal bid to interdict the release of an interim report (authored by a panel headed by Advocate Tembeka Ngcukaitobi) on allegations that medical schemes are racially profiling black, coloured and Indian medical practitioners and that they are therefore unfairly racially discriminating against such practitioners. Predictably, many racial discrimination denialists have questioned the legitimacy of these findings, often displaying a profound ignorance of South African discrimination law in the process.
“Discrimination” – much like “freedom of expression” – is a commonly used, but much misunderstood, term. Everybody thinks they know what discrimination means and how the law regulates it, while only a few ever take the trouble to read the relevant legal texts. No wonder then that so many people have no clue what the prohibition of unfair discrimination in section 9(3) of the Constitution (and a similar prohibition in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)) actually entails. No wonder, also, that many people confidently (but wrongly) claim that redress policies are always discriminatory and amount to “reverse discrimination”.
The same kind of ignorance has marred reaction by racial discrimination denialists to the Ngcukaitobi panel’s interim report in which it identifies clear patterns of racial profiling of medical professionals by medical schemes. Because critics of the panel’s findings are working with a misguided and outdated view of what constitutes discrimination (a view rejected by the Constitution and the Constitutional Court), they do not understand that our law does not require proof of discriminatory intent to make a finding that a person or institution unfairly discriminated against anyone in conflict with the law.
Ngcukaitobi’s panel did not find “evidence of explicit racial bias in the algorithms” used to identify potential fraud, waste and abuse by healthcare practitioners, or in the methods that the administrators and schemes use to identify such practices. However, the panel found that “there is a substantial difference in fraud, waste and abuse outcomes between black and non-black practitioners over the period January 2012 to June 2019”. It also found that over “this period, across all disciplines… black practitioners were 1.4 times more likely to be classified as having committed fraud, waste and abuse than those identified as not black”.
These findings suggest that the medical schemes may be in serious legal trouble. Black doctors (or an organisation acting on their behalf) may well approach the Equality Court for a declaration that these schemes are unfairly discriminating against black doctors on the basis of their race. For reasons I explain below, medical schemes may be hard-pressed to convince a court that the way they are dealing with fraud, waste and abuse by medical practitioners does not constitute unfair racial discrimination.
In terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) medical schemes (like all other private institutions or individuals) are prohibited from unfairly discriminating against anyone on any ground, including race. The Act defines discrimination as:
any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.
In terms of this definition the focus is on the impact of the “policy, law, rule, practice, condition or situation” on the group complaining of unfair discrimination, not on the intention of the person or institution accused of discrimination. As long as it can be shown that the “policy law, rule, practice, condition or situation” had a disproportionate negative impact on the complaining group based on one or more of the 16 grounds listed in the Constitution (for example, race, sex, gender, sexual orientation), or on a ground analogous to the listed grounds (for example, HIV states and non-citizenship), the court will accept that discrimination had occurred. (Whether the discrimination is unfair – a second requirement that must be met – is dealt with below.)
As those who discriminate against others often defend themselves by claiming they had not done so intentionally, and as it can be very difficult to prove that somebody had the requisite intension to discriminate, PEPUDA’s focus on the impact of the “policy, law, rule, practice, condition or situation” (instead of on the intension of those who cause the discrimination), makes it more difficult for those who discriminate to escape legal liability. It also ensures that where racism and racist assumptions are so deeply entrenched that those who discriminate do not realise that they are discriminating by making racist assumptions about a group of people, the law will still be able to hold the discriminators accountable by focusing on the discriminatory impact of the wrongdoers.
Thus, the finding in the interim report that medical schemes were 1.4 times more likely to classify black medical professionals as having committed fraud, waste and abuse than white practitioners, in effect amounts to a finding that the medical schemes discriminated on the basis of race because the way it handled these cases disproportionately impacted on black medic al professionals.
This is not the end of the matter though. Discrimination is only unlawful if it is found to be unfair (although it is presumed to be unfair once it has been shown that racial discrimination took place). The onus is on those accused of unfair racial discrimination to prove that the discrimination is fair and not unfair. In this case, medical schemes would have to prove that it was entirely justified that black practitioners were 1.4 times more likely to be classified as having committed fraud, waste and abuse than black practitioners.
When considering whether the discrimination is fair or unfair, the Equality Court will have to consider all relevant factors (many of these factors are listed in section 14 of PEPUDA). Most notably for the present case, it will ask whether the discrimination has a legitimate purpose and whether the importance of this purpose outweighs the negative effect the discrimination has on the complaining group.
When the purpose of the discrimination is extremely important and sensible, and the impact of the discrimination is minimised, a court is likely to find that the discrimination was fair. For example, a rule prohibiting young children from owning firearms, would discriminate against children on the basis of their age, but as the purpose of protecting both the relevant children and the larger public is a rather pressing one, it is unlikely that a court will find that such discrimination is unfair.
In this case the medical schemes will have to show that the aim of the discrimination was to root out fraud, waste and abuse by health care practitioners. To do so, a medical scheme would have to show, at the very least, that black practitioner fingered for fraud, waste and abuse, were indeed guilty. But it would also have to show that white practitioners in similar situations were treated in the same manner as black professionals. In other words, I suspect the only way medical schemes would be able to escape a finding that they are guilty of unfair racial discrimination, would be to show that in fact they treated black practitioners and white practitioners in very close to an identical manner when investigating them.
Practically, it would be rather difficult for any medical scheme to prove that it investigated black and white practitioners in close to an identical way and held them accountable to the same degree. But given the fact that racism is built in to the very structure of our (or any society), and given the fact that medical schemes fraud investigators are unlikely to be less racist or racially biased than the population at large, I would not be surprised if, based on the facts, it turns out that medical schemes are unable to prove that they investigated black and white practitioners in close to an identical way and held them accountable to the same degree.
The findings in this interim report should make us think about what other types of systemic discrimination may be uncovered by similar investigations in other contexts. For example, an investigation of the salaries of employees with similar experience, qualifications and responsibilities in a specific company may reveal that women and black people systematically earn less than their white colleagues. Or an investigation of lending practices by banks may reveal that it disproportionately deny bond applications of black or female applicants.
But such investigations are costly and – in the absence of political will – are easily thwarted by powerful business interests, which means that they are likely to occur less often than they should.BACK TO TOP