Discriminatory restaurateurs and club owners will have to watch out for the new Bill of Rights, argues Dennis Davis
EQUALITY is a fundamental principle of the interim Constitution and is likely to retain this status in the final Constitution. In similiar fashion to the present Constitution, the draft for the final Constitution provides that, when interpreting the Bill of Rights, every court must promote the values that underlie an open and democratic society based on freedom and equality.
It is thus not surprising that the equality clause has been strengthened in the final draft. As with the present document, it provides that everyone is equal before the law and has the right to equal protection, but extends the guarantee by providing that everyone has equal benefit of the law.
Once more, the drafters have sought to adopt from Canada. Before the introduction of its Charter of Rights and Freedom, there was no provision for equality of benefit in Canada. In a leading case on equality prior to the Charter, a pregnant women was denied unemployment benefits to which she would have been entitled had she not been pregnant. She claimed that the relevant legislation violated the equality guarantee because it discriminated against her on the grounds of her sex. She failed in her claim because the courts held that within her class, that of pregnant women, all persons were treated equally.
Hence, the inclusion of equal benefit was designed to encourage the Canadian courts to develop a concept of equality which was far less mechanistic that that of the Aristotelian principle that ”things that are alike should be treated alike, while things that are unalike should be treated as unalike in propotion to their unalikeness”.
If it is the object of our drafters to prevent the development of a rigid concept of equality that would enable a South African court to reject the kind of compelling claim brought by the pregnant woman, then it is clearly a commendable addition to our Bill of
However, Canadian-inspired technicians tried the same concept in the interim Bill, only to be overruled at the multi-party negotiations, mainly because of a fear that government’s economic priorities might come under rigorous judicial scrutiny and possible interference. For example, should government provide for a housing plan which commences in one area of the country, it might be forced to justify this decision in the constitutional court, when homeless people in another area demand an equal benefit.
Taken with the enlarged category of social and economic rights in the draft, the role of the judiciary will be hugely enlarged and arguments about the justification of economic and social policies will be likely to confront the courts far more than is presently the case.
Significantly, this increased role for the judiciary does not extend throughout the new draft, as subsequent contributions to this series on rights of accused persons and administrative bodies will show. The courts should help to improve welfare, but not necessarily the rights of accused persons or the reasonableness of administrative agencies. A political compromise is in real danger of producing an incoherent product.
Commendably, the drafters have maintained and, indeed, extended the present anti-discrimination clause which protects each person against direct or indirect discrimination on the grounds, among others, of race, gender, sex, sexual orientation and religion.
It appears there is some uncertainty whether this clause should be qualified to prohibit only unfair discrimination. Given the range of prohibited categories from race and gender to age, the word ”unfair” is an important qualifier to discrimination. Without this qualification how, for example, does one respond to a 70-year-old who is rejected as an active pilot? Delete the word from the final constitution and what significance will be given to this by the courts?
In keeping with the expanded nature of the draft’s guarantees, not only the state, but any person is prohibited from an act of discrimination. Private employees, owners of clubs and restaurants, will now need to be constitutionally literate as equality challenges will be brought against private discriminators.
In short, the new Bill of Rights will assume much of the role of a Civil Rights Act. The balance between politics and rights tilts again in favour of the latter.
Professor Dennis Davis is director of the Centre for Applied Legal Studies at Wits University