What is discrimination?
- Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.
- Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
- For example, a female job applicant cannot be refused for a position purely on the fact that she is pregnant.
- Any form of discrimination on these grounds in section 9 is generally considered as automatically unfair.
Can discrimination be fair?
- Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.
- For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.
- Other examples of fair discrimination can be seen in the workplace, for example, discrimination based on affirmative action to promote employment equity; or a differentiation between inherent requirements (skills and qualifications needed) for a certain position.
Are the human rights of undocumented children in South Africa impacted?
- Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.
- Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).
- It is from these human rights where two of the most concerning infringements of undocumented children's human rights arise:
- The right to a name and nationality from birth (section 28).
- The right to a basic education and not to be refused reasonable access to education.
- A High Court ruling has declared certain clauses of the of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children's right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children's human rights.
Are mandatory vaccinations infringing on human rights?
- Section 12(2) of the Constitution provides that every person has the right of security in and control over their body and the right not to be subjected to medical or scientific experiments without their informed consent.
- Although section 12(2) of the Constitution provides a person the right to make decisions on his/her health and not being subject to experimental drugs without their consent, it is subject to limitations.
- Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Therefore, the Government may mandate vaccinations if it is in the best interest of its citizens as it would be a reasonable and justifiable measure in protecting their health and wellbeing.
- It is still unclear if vaccinations will be made mandatory and whether it will withstand the tests for limitation of human rights, but it remains a possibility if it can be justified.
Answers to your Covid-19 questions
Is the cancellation of an advanced booking allowed and can the supplier charge a cancellation fee?
- Section 17 of the Consumer Protection Act (“CPA”) enables a consumer to cancel an advanced booking or reservation for any services as defined in terms of the CPA. It further gives the supplier the right to impose a reasonable charge for cancellation of the advanced booking or reservation.
- However, the supplier may not charge a cancellation fee if the reservation or booking is cancelled because of the death or hospitalisation of the person for whom or for whose benefit the booking or reservation was made.
- This means, for example, that if a consumer is hospitalised due to Covid-19 and must cancel an advance booking or reservation, no cancellation fee may be charged by the supplier.
What about cancellation of bookings or reservations due to travel bans and restrictions on gatherings?
- Although the CPA must still be followed in respect of a cancellation fee, the Consumer Goods and Services Ombudsman (“CGSO”) has said in a media statement in March 2020, that it is their opinion that consumers cannot be charged a cancellation fee and be refused a refund for cancellation due to the travel bans and restrictions on gatherings.
- It is advisable that suppliers and consumers try and negotiate alternative options, such as the option to postpone the bookings or reservations to a future date instead of a refund. The CGSO encourages consumers to consider postponement as opposed to cancellation and a full refund. However, they raised their views that suppliers cannot impose a no refund or voucher policy.
Is there a duty on suppliers to warn consumers if services or goods may impose a risk as a result of the long-term effects or complications from Covid-19?
- Section 49 of the CPA provides that a supplier of any activity or facility that exposes the consumer to a risk that could result in serious injury or death, must alert the consumer to the fact, nature and potential effect of that risk.
- This is usually done in the form of an indemnity clause, which must comply with the following requirements:
- it must be in plain language;
- it must be drawn to the attention of the consumer in an easy to see manner; and
- the consumer must be given adequate opportunity to receive and comprehend the indemnity clause, which usually involves an opportunity for the consumer to ask questions to clarify anything s/he does not understand.
- Since the long-term effects of Covid-19 are not known with absolute certainty, it might be unfair to require suppliers to indicate whether the services or goods they provide might impose specific risks that may occur to consumers who have had Covid-19.
- However, suppliers must still provide the general risks that can occur through making use of their services or goods. For example, the use of humidifiers and nebulizers have been encouraged during the Covid-19 pandemic. Suppliers of such devices should provide warnings and information about the use of such devices.
Can I travel out of South Africa this festive season?
- Planning a holiday out of South Africa this festive season may prove difficult due to the Covid-19 Pandemic. There are some foreign countries that are now accepting South African tourists, for example, South Africans may travel to Germany provided that they can show a negative Covid-19 test result, proof of being fully vaccinated or proof that they have fully recovered from Covid-19.
- Every country might have their own restrictions and requirements in place and it advisable to check with the respective health authorities before making plans to travel.
How can you get your digital vaccination certificate?
- If you have been vaccinated, you can obtain your digital vaccination certificate by going to the following link: http://vaccine.certificate.health.gov.za.
- You will need your vaccination code and your identity number/foreign passport number.
- You can contact the Covid-19 Call Centre for assistance on 0800 029 999.
Legal scenarios clarified
What is meant with a right to make decisions concerning reproduction?
- What is meant with a right to make decisions concerning reproduction?
- Answer: > Section 12 of the Constitution grants everyone the right to freedom and security of the person. It further states that everyone has the right to bodily and physical integrity, which includes the right to make decisions concerning reproduction.
- The right to make decisions concerning reproduction is afforded to persons of all genders, but has the following unique consequences that may only be applicable to women:
- A woman is free to decide whether she wants to have children or not and should not be discriminated against based on her decision;
- A pregnant woman can voluntarily terminate her pregnancy for any reason up to the twelfth week of pregnancy, in terms of the Choice on Termination of Pregnancy Act; and
- A pregnant woman is entitled to maternity leave and employers are not permitted to unreasonably refuse to grant such leave.
Is surrogacy legal in South Africa?
- In the event a couple is unable to conceive and/or give birth to a child due to a medical condition that is permanent and irreversible, they may consider surrogacy.
- Surrogacy is where a woman (“surrogate”) voluntary undertakes to be artificially inseminated in order to bear and give birth to a child on behalf of another person or couple, also known as the commissioning parent/s.
- Surrogacy is strictly regulated by the Children's Act, which sets out the procedure and requirements for surrogacy to ensure that it is legal.
- In order for surrogacy to be legal, all parties concerned must enter into a written surrogate motherhood agreement that must be confirmed by the High Court within whose area of jurisdiction the commissioning parent/s are domiciled or habitually resident.
- A surrogate has no parental rights and responsibilities over the child and cannot keep the child or take him/her back in the future.
- A surrogate may terminate her pregnancy in terms of the Choice of Termination of Pregnancy Act. However, the surrogate must inform and consult the commissioning parent/s of her decision to terminate the pregnancy before the termination is carried out.
- Surrogacy is voluntary and a surrogate is not allowed to receive payment or gifts with the intention of coercing her to become a surrogate. The commissioning parent/s may pay for expenses during the pregnancy.
Should a woman always take her husband's last name upon marriage?
- It is not a legal requirement for a woman to change her last name to her husband's once they get married.
- Although it is generally required to apply at the Department of Home Affairs to change a surname, no application is necessary in the following circumstances:
- where a woman assumes the surname of her husband;
- where a divorced woman or a widow, resumes any surname she had previously, such as her maiden name;
- where a woman adds another surname to her current surname after marriage, such as a double-barrelled surname.
- If a woman decides to assume a different surname in one of the abovementioned circumstances, she must still notify the Department of Home Affairs in writing of same to update the population register.