Eliminating unfair discrimination and making class distinctions a punishable offence is the aim of new legislation. Charlene Smith reports
Capitalism will stand in the dock if new equality legislation to be presented to Minister of Justice Dullah Omar becomes law.
In terms of the Prevention and Prohibition of Unfair Discrimination Bill, the “market economy” which “discriminates all the time against those who cannot afford access to quality housing, health care services, credit and insurance” will be called to book.
The equality legislation drafting unit of the Department of Justice and the Human Rights Commission has been working on the Bill for the past year.
If it becomes law, those who breach it could face fines of up to R70 000. This could be a school that does not allow children to wear Muslim headgear, or a club that restricts admission to people of a certain race or gender.
Typical examples would include:
l Banks redlining poor areas such as Berea in Johannesburg or Pimville in Soweto.
l The loading of health premiums against the poor on the grounds that they are more susceptible to certain forms of disease.
l Refusal to complete credit applications for the illiterate.
l The exclusion of people in atypical forms of employment from credit, social insurance and other social benefits and services.
l Exclusion of poor people from banking services.
l Those who rent accommodation of three rooms or more will not be able to discriminate on the basis of race or gender.
Advocate Sicelo Mthethwa, one of the drafters, says the Bill aims to entrench the section of the Constitution which guards against unfair discrimination.
While other laws protect employment rights, gay rights and the rights of women, children and the disabled, this one takes a hard look at the class divisions. It will make class distinctions a punishable offence.
Says Mthethwa: “We have included discrimination against those with HIV/Aids and socio-economic status – in other words, discrimination against the poor.
“We are also considering nationality as a grounds because of the rise in xenophobia.” The drafters are examining barriers to certain professional grades and associations, particularly in medicine and law. “We have received complaints from the Black Lawyers’ Association about difficulties of gaining admittance to the Johannesburg Bar.”
Then there is access to health care facilities. Should private hospitals be allowed to refuse treatment to those who are not on medical aid? Mthethwa envisages they will not be allowed to do this, which he says will be in line with legislation in countries such as Canada.
Equality tribunals – similar to the Council for Conciliation, Mediation and Arbitration, which hears labour disputes – will be set up to allow specialists to hear disputes and ensure that complainants do not have to go to the expense of hiring lawyers.
The proposed legislation, which so far runs to 70 pages, is based on public submissions and on similar legislation in Canada, Australia, the United States and the Netherlands.
An example in Canadian law involved a single mother on welfare who was refused accommodation because of fears that she would not be able to pay. The tribunal found this was based on a swift and superficial assessment that did not take into account her previous history as a reliable tenant.
Mary Tomlinson of the South African Banking Council says the Bill is similar to the Community Reinvestment Act in the US, “which is part of a package of legislation that took over a decade to be passed.
“There are different components to it, one around discrimination; another involves disclosing loans and another aims to ensure that lending occurs around sound practices.”
She says the government and the banks will have to agree on what they mean by sound lending practices. “The council has adopted the position that discrimination is illegal. And we would agree that disclosure on lending is a good idea to make the whole environment more transparent, rather than forcing banks into unsound lending.
“In the US it is recognised that some lending can be risky, so there are incentives through tax codes, insurance on loans and other measures.”
The draft Bill is expected to be handed to Omar in the first week of March.