THE PRIVATE PROPERTY ARGUMENT
30 May 2017
What follows here is an argument that can be made in public, but which will not necessarily always be supported by South African law as it currently stands.
The restaurant in question is private property, which the owners paid for and pay to maintain. The owners should therefore have the right to exclude whoever they wish from their property, for whatever reason, because nobody has a right to someone else’s property. However, the restaurant acknowledges the patterns of disadvantage that LGBT individuals experience in South African society, and that no offence was intended by having a straight-only couples’ night.
The restaurant is open to LGBT individuals throughout the year, but for these select evenings. In other words, the restaurant has no interest in unfairly discriminating against LGBT individuals – it seeks to do business with them as well.
Right of admission
Section 25(1) of the Constitution recognises and protects South Africans’ property rights. This should be read with section 18 of the Constitution, which recognises and protects South Africans’ freedom of association. Right of admission, within this context, means that owners of property may exclude whoever they wish from their property, for whatever reason, because they have a right to their property as well as freedom of association.
Equality and the limitation of rights
The Constitution does, however, also provide in section 9(4) that South Africans may not unfairly discriminate against each other on the grounds of, among other things, sexual orientation. What is and what is not ‘unfair’ discrimination is outlined in the Equality Act of 2000.
Section 36 of the Constitution limits all of the rights in the Bill of Rights, and says that a law, like the Equality Act, may for instance limit private property rights and freedom of association if the limitation is ‘reasonable and justifiable’ in an ‘open and democratic society’ founded on the values of freedom, equality, and human dignity.
Section 14 of the Equality Act sets out how to determine whether discrimination is fair or unfair.
Measures to “protect or advance” categories of people disadvantaged by unfair discrimination, is not unfair discrimination. Therefore, an “LGBT night” at a restaurant would in almost no case be considered unfair discrimination.
It is the duty of the respondent (the discriminator) to prove that the discrimination they have been accused of is ‘fair’ and that they are therefore not liable. To do this, the context must be considered as well as “whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.” This last point, for example, means that if a movie studio is casting someone to play Nelson Mandela, it would be ‘fair discrimination’ if they refuse to appoint a white actor to fill that role. This, however, will likely not come to the assistance of a restaurant.
There are also various factors which must be considered to determine whether discrimination was fair. These are:
- Whether the discrimination impairs or is likely to impair human dignity. The more likely the conduct is to impair the dignity of LGBT persons, the higher the likelihood that the discrimination is unfair. It can be pointed out here that the ‘couples’ right’ was only night a week, and that LGBT persons are welcome any other time.
- The impact or likely impact of the discrimination on the complainant. The more disadvantageous the discrimination is on the LGBT person in question, the higher the likelihood that the discrimination is unfair. It could be pointed out here that the couples’ night did not have a great impact on the persons in question, because they are reporters and not a legitimate couple. If they were a legitimate couple, it might be argued that the impact was not that severe because there are other restaurants in the area and the restaurant is open to all on other evenings.
- The position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group which suffers from such patterns of disadvantage. This speaks for itself, and any South African court will say that LGBT persons suffer from a pattern of disadvantage.
- The nature and extent of the discrimination. The more severe the extent of the discrimination, the likelier it is to be unfair. It could be argued here that the restaurant’s discrimination took place only on one evening per week, and therefore it is not severe.
- Whether the discrimination is systemic in nature. Is the exclusion of LGBT persons from the restaurant a recurring phenomenon? If not, then the discrimination is likely not to be seen as systemic.
- Whether the discrimination has a legitimate purpose. This ties in with the example of the Nelson Mandela actor above as well as measures designed to protect or advance disadvantaged individuals. As another example, one can discriminate against a blind person who applies to be the driver of a bus, or discriminate against a disabled person who wishes to ride a rollercoaster. The restaurant will need to think about how to frame the narrative for a straight-only couples’ night in such a way that makes it seem to have a legitimate purpose, although this will be a tough sell.
- Whether and to what extent the discrimination achieves its purpose. This speaks for itself. Even if the discrimination has a legitimate purpose, but it cannot reasonably ever achieve that purpose by discriminating, then it will be unfair discrimination.
- Whether there are less restrictive and less disadvantageous means to achieve the purpose. If there was another way for the restaurant to achieve the legitimate purpose it had in mind for the couples’ night without discriminating against LGBT persons, then the discrimination will likely be seen as unfair.
- Whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited grounds or accommodate diversity. I am not entirely certain about what this provision means, but it seems to imply that if the restaurant also had an LGBT-only couples’ night on another evening of the week, then the discrimination in question would have been seen as fair.