Ipsa scientia potestas est
25 April 2017 10:52 (South Africa)
Opinionista Pierre de Vos

News flash, folks: discrimination IS illegal

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Many South Africans still wrongly believe that they have an absolute right to discriminate against black South Africans by refusing to provide them with access to a service because the service is rendered on their private property. A recent newspaper advertisement, offering “safe non-affirmative action” accommodation for female students of the University of the Free State, is a textbook example of this criminal behaviour.

The Rights in the South African Bill of Rights – unlike many other, more traditionally liberal, human rights texts – do not only bind the state. In certain circumstances the rights in the Bill of Rights also bind private individuals, institutions and businesses who are constitutionally required to respect the rights of everyone.

Section 9(4) reinforces this principle in the field of discrimination law by stating that “[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds”, including race, sex, gender, sexual orientation, religion, belief or culture.

The Constitution itself therefore places limits or the right to property as well as the right to freedom of association. As the Constitutional Court has indicated several times, the provisions of the Constitution must be read holistically, which means that section 9(4) must be read as placing an internal limitation on other rights such as the right to property and the right to freedom of association. This means the right to associate freely and the right to property is qualified by section 9(4) and these rights can only be exercised in conformity with the non-discrimination injunction contained in section 9(4) of the Bill of Rights.

The right to property has never been an unqualified right – even in the pre-Constitutional era. As is the case in all other countries – the law places drastic restrictions on the way in which a property owner can make use of his or her property in order to advance the common good or to protect the community.

That is why a property owner cannot dump toxic chemicals into a river running through his or her property, why a property owner is prohibited from making incessant noise, why a property owner has a duty to ensure that the roots of any trees on his or her property do not threaten the integrity of buildings on an adjacent property and why you cannot use the back yard of your suburban home to run a poultry farm.

Of course, a private property owner who does not offer a service to members of the public and complies with the many other legal restrictions imposed on the use of that property, remains free to act with the property as he or she wishes. There is therefore no law prohibiting a property owner from only inviting white friends to a braai or from only inviting male friends to come and watch a rugby match in his living room.

While we may make a moral judgment about a person who refuses to mix socially with members of another race, the law does not and cannot force that person to befriend members of a different race and to accommodate them in a purely social setting on his or her property.

Despite the very clear an unambiguous constitutional prohibition against unfair discrimination by private parties, some property owners still believe that they have a right to refuse to rent a room or a flat or house to somebody because that person is black or gay or Muslim.

Some business owners also wrongly believe that (an essentially unenforceable) “right of admission reserved” sign at the entrance to their restaurant, Bed and Breakfast or holiday resort allow them to refuse entrance to a potential customer because the customer is black or gay or a Rastafarian. Section 9(4) now limits the potential legal ambit of the right of admission rule.

I suspect few landlords (who are defined in the Rental Housing Act as including anyone who rents out an apartment, house, shack or a room in a house or an apartment to members of the public) know that it is a criminal offence to discriminate against potential or existing tenants. This is because many people are unaware of the content of section 4(1) of the Rental Housing Act, which states that:

“In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landlord may not unfairly discriminate against such prospective tenant or tenants, or the members of such tenant’s household or the visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.”

Read with section 16 of the Act, it is clear that anyone who contravenes section 4(1) is guilty of a criminal offence and liable on conviction to a fine or imprisonment not exceeding two years. As soon as a landlord offers rental accommodation to the public, he or she is bound by the Act and is prohibited from discriminating.

The situation may be different where a property owner does not advertise the rental accommodation to the public, but asks friends or relatives to share the accommodation with him or her.

This means that “Ronel” who advertised “safe non-affirmative action” accommodation for female students of the University of the Free State, runs the risk of being criminally prosecuted and being sent to jail for two years.

Tenants who rent accommodation from unscrupulous landlords can also approach the Rental Housing Tribunal in their province, who is empowered to resolve rental disputes and address any unfair practices of a landlord. In the case of unfair discrimination, the Rental Housing Tribunal is authorised to refer the matter to the police for criminal investigation.

The Rental Housing Tribunal can also make any other ruling that is just and fair in order to terminate any unfair practice, including a ruling to discontinue overcrowding; unacceptable living conditions; exploitative rentals; or lack of maintenance. Rental Housing Tribunals are, as far as I can tell, under-utilised.

There is no one website for the Rental Housing Tribunal as they operate on a provincial/municipal basis. But I have been able to find the following contact details (which I have not had the time to check) for the respective Rental Housing Tribunals. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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