Stop justifying normalised discrimination
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