To say that the right to equality is seminal in our constitutional dispensation is perhaps to state the obvious. Or so one would think. And yet, in July this year the Department of Trade and Industry (DTI) took a strikingly retrogressive step in publishing discriminatory new programme guidelines for the various Film and Television Production Incentives. In particular, the guidelines endorse a deliberate policy choice to exclude permanent residents from the scheme, in breach of the right to equality.

Under the 2006 guidelines, “qualifying South African production expenditure” was defined to include spend on “producers, writers, directors as well as the technicians and other production personnel” who “are citizens or permanent residents of South Africa”.

The 2015 guidelines were phrased more ambiguously, with references to “citizens” in places, and “nationality/residency” in others. Despite these apparent discrepancies, the DTI, until very recently, awarded incentives to both qualifying permanent-resident and citizen expenditure (all qualifying South African identity-book-holder spend).

This is of course rational, given the programme’s explicit objective of “contributing towards the creation of employment opportunities in South Africa”.

The 2018 guidelines similarly seek to achieve this goal of enhancing employment and development, yet the “means” they adopt to do so seem irrational. Key industry role-players — directors, writers, producers, highest-paid performers — must now, by default, be South African citizens (section 5).

Practically, this means that many productions will be under-funded and will have to lay off staff. A producer of a multi award-winning local TV production, who has been permanent resident in South Africa for more than two decades, advised me that he is now in the difficult position of having to retrench employees (both permanent residents and citizens) in the wake of the DTI’s failure to pay-out pre-approved qualifying South African production expenditure attributable to non-citizens. This top-level sanctioned discrimination calls for pause and reflection.

After all, sometimes in the spirit of transformative constitutionalism, it is necessary to reflect upon the record to reassess where we are heading and where we never wish to return, which is surely a place of divisiveness, of “othering”, of xenophobia? This, we must avoid at all costs, and any policy or legislatively permissible discrimination must be scrutinised for constitutional compliance.

It is therefore worth reminding ourselves of the first principles contained in our Constitution. Section 2 affirms the Constitution’s supremacy and is clear that “law or conduct inconsistent with it is invalid”. Chapter 2 is our hard-won Bill of Rights which is the “cornerstone of our democracy” and “enshrines the rights of all people in our country” (section 7).

This point is significant: it endorses a deliberate choice on the part of our constitutional drafters to afford the rights in the Bill of Rights to all persons within the geographical borders of the country, save where the express wording of a right suggests the contrary.

This accords with the Immigration Act 13 of 2002 which articulates the objective of“promoting a human-rights based culture in both government and civil society in respect of immigration control”(section 2(1)(a)) and to this end section 25(1) states that, “the holder of a permanent residence permit has all the rights, duties and obligations of a citizen, save for those…which a law or the Constitution explicitly ascribes to citizenship”.

Of course all law has to be constitutionally compliant. And our Constitution is plain on this score. So, for example, the political rights in section 19 are limited to “citizens”. The bedrock right to equality, on the other hand, is explicitly — and rightly — afforded to “everyone”and section 9(3) outlaws unfair discrimination on a host of offensive grounds. “Citizenship”does not make an appearance here, but has been held to be an“analogous ground of unfair discrimination”in several key Constitutional Court judgments.

In Larbi-Odam v Member of the Executive Council for Education (North-West Province)1998 (1) SA 745 (CC), the following considerations tipped the scales in favour of a finding of unfair discrimination on the basis of citizenship.

First, foreign citizens are a minority group with little political power who are at risk of having their interests overlooked. Second, citizenship is an immutable personal attribute — it is a “characteristic of personhood not alterable by conscious action and in some cases, only on the “basis of unacceptable costs”. Third, non-citizens are especially vulnerable given they compete in a job market with endemic unemployment, scarce skills and resultant xenophobic violence and threats. The court also noted that“permanent residents are entitled to compete with South Africans in the employment market…[for] it makes little sense to permit people to stay permanently in a country, but then to exclude them from a job they are qualified to perform”. Indeed permanent residents owe the country a duty of allegiance and must pay taxes to the state.

The case of Khosa v Minister of Social Development2004 (6) SA 505 (CC) is also significant. Here the court found the legislative scheme which excluded permanent residents from social assistance benefits to be unfairly discriminatory and invalid, despite the fact that the additional cost of their inclusion for the fiscus would be between R243-million and R672-million.

Judge Mokgoro emphasised the adverse impact of the scheme on the dignity of permanent residents as a “vulnerable group” in society, who would be forced into “relationships of dependency upon families, friends and the community in which they live”.

The 2018 guidelines could well contribute to such impacts. In addition to the exclusionary principles they endorse, there are the overwhelming wider economic concerns and unintended consequences of excluding non-nationals from an international sector that has created thousands of jobs and made a major contribution to South Africa’s economy.

Many foreign-born citizens and residents have played a key role in developing South Africa’s film and entertainment industry to be one of our most promising sectors. This discriminatory approach to incentives will defeat the object of job creation and so calls the rationality of the scheme’s methodology into obvious question.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 is the legislation through which to challenge discriminatory conduct, policies, guidelines and so on — essentially everything other than actual laws.

It incorporates the section 9 constitutional grounds read with the applicable case law, and entails a balancing analysis in which various factors are weighed to determine whether discrimination is unfair.

On my assessment, an equality court is likely to tip the scales in favour of adversely affected permanent residents here. It is advisable for the DTI to revise the scheme to ensure constitutional alignment. The department would also do well to reflect more widely on the consequences — legal, moral and economic — of cementing exclusionary practices in similar future schemes. DM

Lauren Kohn Lawyer is a legal expert and senior lecturer (UCT). She wrote this article based on a legal opinion she drew up for the Independent Producers Organisation.