Stop jus­ti­fy­ing nor­malised dis­crim­i­na­tion

CityPress - - Voices - Gugulethu Mh­lungu voices@city­press.co.za

An­other week, an­other in­stance of racial dis­crim­i­na­tion – the kind black peo­ple have been talk­ing about for years, and have said re­peat­edly we are sub­ject to: from schools, po­ten­tial and cur­rent em­ploy­ers, es­tate agents, restau­rants, clubs and guest­houses, to shop staff and se­cu­rity guards; and in pub­lic and pri­vate spa­ces, very often us­ing largely legally un­en­force­able “right of ad­mis­sion re­served” signs.

This time it was An­dré Slate, the owner of Sod­wana Bay Guest House in KwaZulu-Natal, who told Siza­kele Msi­mango that his es­tab­lish­ment does “not ac­com­mo­date blacks or gov­ern­ment em­ploy­ees any longer” in an email shared on so­cial me­dia.

This led to an­other week of racism and many other peo­ple say­ing “racists have free­dom of as­so­ci­a­tion and/or re­li­gious free­dom” as some kind of de­fence for nor­malised forms of di­rect and in­di­rect dis­crim­i­na­tion. Per­haps this speaks to a grave fail­ure in civic ed­u­ca­tion on what the Con­sti­tu­tion, in its en­tirety, ac­tu­ally says, and how hav­ing cer­tain free­doms doesn’t ab­solve any­one from hav­ing to com­ply with the pro­hi­bi­tion of un­fair dis­crim­i­na­tion.

As Pierre de Vos, the Claude Leon Foun­da­tion chair in con­sti­tu­tional gov­er­nance at the Univer­sity of Cape Town, wrote in 2013 af­ter a wed­ding venue dis­crim­i­nated against a gay cou­ple: “The own­ers of th­ese pri­vate com­pa­nies might ar­gue that to pro­tect their own free­dom of choice and the right to pri­vate prop­erty, the law had to ‘re­spect’ their pri­vate (big­oted) be­liefs or feel­ings and should there­fore al­low them to dis­crim­i­nate against whom they want ... they ar­gue that to deny them the right to act like big­ots is it­self big­oted.

“This ar­gu­ment can­not fly ... A law that pro­hibits a busi­ness from dis­crim­i­nat­ing against oth­ers based on the race, sex, sex­ual ori­en­ta­tion or dis­abil­ity of the po­ten­tial cus­tomer is not pre­vent­ing the owner from hold­ing his or her big­oted views ... The owner con­tin­ues to have the right pri­vately to hold th­ese views.”

How­ever, as De Vos fur­ther ex­plains, that right does not al­low for dis­crim­i­na­tory be­hav­iour, as many be­lieve. Fur­ther­more, that we have al­lowed big­ots, such as racists, to get away with their bad and often il­le­gal be­hav­iour, and ac­cepted it as nor­mal for what­ever rea­son, does not mean the Con­sti­tu­tion sanc­tions it.

We must guard against parts of the Con­sti­tu­tion con­tin­u­ally be­ing used to jus­tify di­rect and in­di­rect dis­crim­i­na­tion, when the Bill of Rights and other leg­is­la­tion such as the Pro­mo­tion of Equal­ity and Pre­ven­tion of Un­fair Dis­crim­i­na­tion Act ex­pressly pro­hibit it.

We must guard against the Con­sti­tu­tion be­ing used to jus­tify dis­crim­i­na­tion

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