Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
18 June 2010

On “unfair discrimination” and Afrikaans

A reader of this Blog posed an interesting question today about language discrimination by Pretoria Bars during the World Cup. He wants to know whether it would be unconstitutional for:

the bars in Hatfield, Pretoria/Tshwane, who during the world cup are selling drinks to Afrikaans speakers for R18 and to other persons for R55, however with the option for non-Afrikaans speaking South Africans to buy a loyalty card for R50 and get the same benefit. Would this not be in contravention of section 9 (4), cf. (3), of the Constitution according to which “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)” Subsection (3) mentions language.

Well, when an individual or private concern like a Bar is alleged to have discriminated against anyone else, then the easiest and most direct way to deal with the matter is to apply the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – the same Act that prohibits hate speech.

Section 6 of that Act prohibits the state or any person (including a Bar) from unfairly discriminating against anyone on the basis of any prohibited ground, including race, sex, gender, disability, sexual orientation, language, social origin or culture. Any discrimination inquiry in terms of PEPUDA has two steps. First, one must determine whether there was discrimination on a prohibited (or related) ground, then, second, one must determine whether the discrimination was fair or unfair. Only unfair discrimination is unlawful.

The Act makes clear that if a non-Afrikaans speaking patron at the Bar in question can show that the Bar had imposed  any rule or practice which resulted in the withholding of a “benefit, opportunity or advantage” from any person on the basis of his or her language, that Bar would indeed have discriminated against those who were not given the benefit.

Here it is pretty obvious that the Bar charges different prices based on the language spoken by a patron. Even though non-Afrikaans speakers can buy a membership card to get the same benefits, they are still treated differently and the Bar is thus withholding some benefits or advantages from them based on their language. Given the fact that most black South Africans are not Afrikaans speakers and the rule would therefore disproportionately affect black people, the discrimination may also be found to have occurred on the basis of race. Such a Bar is thus clearly discriminating against non-Afrikaans speakers.

But not all kinds of discrimination are unfair and hence unlawful. A standard example of “fair” discrimination would be the rule that blind South Africans or South Africans younger than 18 cannot obtain a drivers license. They are clearly being discriminated against on the basis of age or disability as the law withholds the benefit of driving a car from them, but because there is a legitimate and rather important reason (namely road safety) for this discrimination, it is not considered unfair and hence is not unlawful.

Once one has shown that one has been discriminated against by the Bar – as was clearly the case here – then the Bar has the onus of proving that its discrimination was fair. Factors that can be taken into account to prove the fairness of the discrimination are:

(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited grounds; or accommodate diversity.

The heart of the matter is an inquiry into whether the discrimination has a legitimate and important purpose and if it has, whether this can justify the unfair discrimination, given the seriousness of the discrimination and the impact it has on those discriminated against. Is the discrimination perpetuating past patterns of discrimination or addressing such patterns of discrimination? In this case, there can be no legitimate purpose for discriminating against non-Afrikaans speakers for the following reasons.

The Bar is open to the public. It is not a cultural club where speaking Afrikaans would be a prerequisite for membership. Afrikaners is not a group that has previously been discriminated against and Afrikaners would be hard pressed to argue that because of the overwhelming animosity and hatred towards Afrikaners in Hatfield they have a right to a safe space where they will not be vilified and intimidated by a prejudiced and hateful majority.

The only reason for the rule would be to provide a benefit to one group because of either prejudice or a desire to exclude others based on their language or race (as it is rather probable that the “others” the Bar wishes to exclude would be black South Africans). The purpose of the discrimination is therefore to discriminate, and that can never be a legitimate purpose to justify discrimination.

The position might be different in a gay Bar as gays and lesbians have been previously discriminated against, form a small and vulnerable minority and have a legitimate interest to congregate in a safe space where they will feel protected from the homophobia and hatred of the majority.

So, if this is indeed happening, I am pretty sure that the Bars are unfairly discriminating against non-Afrikaners on the basis of language (and perhaps race). If one were to take any of these Bars to the equality court one will easily win one’s case. In my opinion this is not a close call at all. The discrimination is so obvious and blatant that it is clearly unlawful.

Give them hell.

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