HIGHLANDS HOUSE (THE CAPE JEWISH AGED HOME) IN RE:

SUBMISSIONS TO THE PORTFOLIO COMMITTEE ON SOCIAL
DEVELOPMENT OF THE NATIONAL ASSEMBLY ON THE
OLDER PERSONS BILL [B68B-2003]

INTRODUCTION


1.These submissions are made on behalf of Highlands House home for the aged to the Portfolio Committee on Social Development of the National Assembly ("the Committee") in response to a public call for comments on the Older Persons Bill [B68B-2003] ("the Bill"); and in terms of section 59(1 )(a) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution")1

2.It is requested that Mr. Eliot Osrin, together with legal representatives of Highlands House, be given an opportunity to present these submissions to the Committee during its hearings on 30 August 2005 (after 11 00 if possible).


3.Following a brief introduction of the Highlands House, comments are made on two aspects of the Bill:

3.1.First, the requirement in section 9(4) that a person may only be admitted to a facility without his or her consent under a court order; and

3.2.Secondly, the prohibition on unfair discrimination in section 9(1); read together with the requirement in section 9(2) that the race composition of South Africa must be considered when determining eligibility for admission.

4.This submission concludes that the Bill in its present form is inconsistent with the Constitution and invalid. We provide amendments which will in our view, render it constitutional.

BACKGROUND TO HIGHLANDS HOUSE
5.Highlands House was established in 1920 by the Jewish community of Cape Town to provide its aged members with a "Jewish home from home" and to make it possible for them to conduct their lives in conformity with the religious dictates of Judaism.

6.It is situated in the City Bowl area of Cape Town and currently has approximately 200 residents and continues to operate solely for the benefit of aged members of the Jewish community. It is completely private funded.2 In light of the fact that at least 50% of the residents pay 30% or less of the stipulated fee, the House relies on donations from the Jewish community to cover the shortfall.

7.Highlands House offers has a full range of services, including accommodation; Kosher dining, tea and entertainment areas; medical facilities; a hairdresser; a synagogue; and frail care unit. All facilities are accessible by wheelchairs.

8.Highlands House is a "facility" as defined in terms of section 1 of the Bill. As such, it will be subject to the Bill - including the requirement that it applies for registration in terms of section 5(2), read with section 22(2) of the Bill, within twelve months after the Bill commences.

SECTION 9(4) - ADMISSION TO FACILITIES WITHOUT CONSENT

9.Section 9(4) of the Bill states that "subject to a court order no older person may be admitted to a facility without his or her consent." The failure to attain such a court order is, in terms of section 9(5) read with section 20(b), an offence punishable by a fine and I or imprisonment for up to five years.

10.The Bill does not make it clear whether this punishment will be levied against the facility or the admitting officer.

11.The concerns raised by Highlands House in this regard are purely practical.3 There are a great many cases in which older persons will not be able to consent to their admission to a facility due to medical conditions such as Alzheimer's disease or senile dementia. The experience at Highlands House has been that the number of such cases are increasing.

12. It is neither practicable nor desirable that these individuals remain in their own homes. They require medical treatment and if left to their own devices, pose a significant danger to themselves and others due to the increased risk of (otherwise avoidable) accidents.

13.In the circumstances, it is submitted that legislation should facilitate, rather than hamper, the admission of these individuals to registered facilities.

14.The requirement for a Court order as a pre-requisite for admission will also strike a disproportionately heavy blow to the most vulnerable members of any community namely the poor. The difficulty in finding a facility which is prepared to admit a poor, senile individual will be compounded if that facility must first go through the potentially expensive process of attaining a court order.

15.Highlands House understands and respects the obvious desire of the legislature to protect vulnerable members of the community. It is however submitted that the financial realities faced by facilities, whether private or public, will by themselves militate against 'forced' admissions. In any event, a distinction must be made between those older persons who are capable, and who are not capable of giving their consent to admission. The determination whether a person is capable of giving consent can be made by a medical professional.

16.In this regard Highlands House suggests:

16.1.First, section 9(4) could be amended b read as follows: "No older person capable of consenting to his or her admission to a facility may be so admitted without his or her consent excepting in terms of an order of a court"; or

16.2.Secondly, section 5(5) could be amended to included a provision that a facility's registration will be withdrawn by the Minister if that facility is found to have admitted persons capable of giving their consent against their will.

UNFAIR DISCRIMINATION IN ADMISSION: UNCONSTITUTIONALITY
17.Section 9(1) of the Bill prohibits any facility from unfairly discriminating against any older person applying for admission on any of the grounds referred to in section 9(3) of the Constitution. These are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

18.In terms of section 9(5), read with section 20(b), any person who contravenes this section is liable to punishment by a fine and I or five years imprisonment. This is a significant punishment and illustrates the seriousness with which the legislature views the protection of equality.

19.Section 9(4) of the Constitution and section 6 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("Pepuda") similarly prohibit unfair discrimination by private persons and institutions on the "prohibited grounds" mentioned in section 9(3) of the Constitution.4

20.Section 9(1) of the Bill tracks section 9(4) of the Constitution and Pepuda in the sense that not all discrimination will be automatically unlawful, but only if it is "unfair".

21.It is accepted that to the extent that section 9(1) of the Bill reflects the requirements of section 9(4) of the Constitution and Pepuda, it is beyond reproach. The Bill, however, differs significantly from the Constitution and Pepuda in its approach to "fairness".

22.The concept of "fairness" in the discrimination context has been fleshed out in several judgments of the Constitutional Court;5 and many of the considerations in these cases have been effectively codified in section 14(2) and (3) of Pepuda.

23.The Bill does not adopt these definitions or define "unfair discrimination" itself. The approach to unfair discrimination in section 9(1) is however modified by section 9(2), which provides that in determining eligibility for admission, all facilities must consider "the need ... to reflect broadly the race composition of South Africa".

24.In other words, the general prohibition of unfair discrimination is supplemented by a specific requirement for private institutions to take positive steps to redress discrimination based on race. Any facility which fails to take these steps (i.e. to ensure demographic represententivity in the make-up of its residents) will be guilty of unfair discrimination in terms of section 9(1) of the Bill, and consequently a crime in terms of section 9(5) of the Bill.

25.Even if section 9(2) does not modify section 9(1) as suggested above, any facility which fails to take the required positive steps will be acting unlawfully, and this may impact upon its continued registration in terms of section 5 of the Bill.

26.The intention underlying section 9(2) cannot be faulted. It is patently borne out of the legitimate desire by the legislature to address and correct the imbalances which proliferated under South Africa's racist past.

27.It must, however, be recognised that this approach goes significantly further

than the protections against unfair discrimination in the Constitution and Pepuda. In section 7 of Pepuda, various illustrations are given of discrimination based on race, including the prohibitions of hate speech [section 7(a)]; racial exclusivity [section 7(b)]; direct or indirect racial exclusion [section 7(c)]; the provision of inferior services to members of one race [section 7(d)]; and the denial of access to opportunities and services based on race [section 7(e)]. These protections are all "negative" in character. Unlike the Bill, they only prohibit unfair discrimination and do not place a "positive" duty on anyone to ensure racial representivity.

28.The imposition of positive duties is not in itself problematic. On the contrary, section 9(2) of the Constitution forsees that in order to "promote the achievement of equality, legislative and other measures designed to protect or advance persons, disadvantaged by unfair discrimination, may be taken." The achievement of equality and non-racialism are similarly identified as foundational values in sections 1(a) and (b) of the Constitution.

29.Highlands House is concerned that the specific measures in the Bill will have other unintended, and unconstitutional consequences for facilities which legitimately operate for the benefit of members of a particular religion.

30.As an example, the only requirement that Highlands House takes into account in its admission policy is that the applicant for residence must be Jewish. The person's race does not enter into the consideration. Forcing Highlands House to replace this primary consideration with a requirement to consider demographic representivity [in terms of section 9(2) of the Bill] will violate the rights of it and its residents to religious freedom [in section 15(1) of the Constitution]; freedom of association [section 18 of the Constitution]; cultural life [section 30 of the Constitution]; religious practice [section 31(1)(a) of the Constitution]; and to form, join and maintain a religious association [section 31(1 )(b) of the Constitution].

31. The threat of deregistration and closure 9f the Highlands House if it fails to comply with section 9(2) of the Bill will also violate the rights of the current residents to dignity [section 10 of the Constitution]; property [section 25 of the Constitution]; access to existing housing [section 26 of the Constitution]; and access to existing health care services, food and water, and social security [section 27(1) of the Constitution].6

32.In order to illustrate the unintended consequences of section 9(2), we now turn to the circumstances of Highlands House as an illustration.

THE FAIRNESS OF ADMISSION POLICY OF HIGHLANDS HOUSE
33.It is accepted that Highlands House's admission policy discriminates against all applicants who are not Jewish.

34.This discrimination is not unfair. As will be illustrated below, the admission policies of Highlands House meet the test for "fair" discrimination in the Constitution and sections 14(2) and (3) of Pepuda.

35. Furthermore, there is no constitutional or policy reason to extend the principles in the Constitution and Pepuda and to impose a more onerous positive duty on Highlands House to achieve demographic representivity -particularly when the imposition of that duty violates the fundamental rights of Jews as a religious group.7

36In this regard it is accepted that legislative measures may and should be taken to counteract exclusionary membership requirements which are not overtly based on race, but which are indirectly intended to achieve racial exclusivity.8 However, this is not such a case. An important distinction must be made between such "dressed up" racism; and legitimate and established distinctions which are not based on ideas of racial exclusivity and superiority.

37.The Jewish community is not a racial group. Even though in South Africa Jews are largely perceived as being 'white', a large percentage of Jews in Israel are not what would be considered to be white in South Africa. This applies particularly in the case of Jews from Yemen, Morocco, India and Ethiopia. Thus applicants who are not white, but are Jewish, will be eligible for admission to Highlands House.

38.In the context of South Africa the exclusion of persons who are not Jewish will however have the consequence that the majority of the residents of Highlands House are white. This is however not based on parochial narrow-mindedness, exclusivity, affectation or superiority - but on practical and legitimate protection of the aged, vulnerable members of a religious group, who are given an opportunity to spend their twilight years in a familiar environment which is specifically d3signed to their religious practices and needs.

39.The findings of the Constitutional Court in Christian Education of South Africa V Minister of Education 2000 (4) SA 757 (CC) at para 42 are apposite in this regard. Writing for the Court, Sachs J held as follows:

"It is true that to single out a member of a religious community for disadvantageous treatment would, on the face of it constitute unfair discrimination against that community. The contrary, however, does not hold. To grant respect to sincerely held religious views of a community and make an exception from general laws to accommodate them, would not be unfair to anyone else who did not hold those views. As the Court held in Prinsloo V Van der Linde [1997 (3) SA 1013 (CC) at paras 32-33], the essence of equality lies not in treating everyone in the same way, but treating everyone with equal concern and respect."

40.For all of the reasons below, it is further argued that there can be no justification in terms of section 36 of the Constitution for the infringement of the rights of Highlands House and its residents described in paragraphs 30 and 31 above.

(a)The context [section 14(2) of Pepuda]

41.The Jewish population of South Africa stands at approximately 80 000 and constitutes 0.2% of the country's population.

42.It is also important to note that in the current case we are dealing with aged persons - a vulnerable group for whom the practice of their religion is a great source of comfort and solace in the twilight of their lives. In light of the small size of the Jewish community and the particular requirements of the practice of Judaism, it is neither possible nor practicable to offer Jewish home conditions for the aged in any other setting than those at Highlands House.

(b)Reasonableness and justifiability on an objective criterion [section 14(2)(c) of Pepuda]

43.The class of Jewish people is an objectively determinable group.

44.The maintenance of an aged home is the only way in which the Jewish community can offer its aged members a "Jewish home from home". The practice of Judaism is intrinsic to the running of Highlands House and is an important source of solace and comfort for its residents.

44.1.Highlands House strictly adheres to Jewish dietary laws and it marks the Jewish Sabbath and other festivals. Regular services are conducted in the Synagogue at Highlands House. The Synagogue allows for easy wheelchair access. Services in the Synagogue are held on Friday nights, Saturday mornings, Sunday evenings and on festivals. In addition, Rabbis regularly visit Highlands House and after the Saturday service a traditional "Brocha" is held. Because of their infirmity, many of the residents would not be able to attend Synagogue with any regularity (if at all) if these accessible and convenient facilities were not available.


44.2. Jewish religious dietary laws require all food to be Kosher. For observant Jews it is considered to be a breach of religious law, and even sinful, to eat food which is not Kosher. For this reason both the dining room and tea room at Highlands House are strictly Kosher. A system of "Kashrut" is also strictly maintained at Highlands House. This system requires separate crockery, cutlery and cooking utensils for food that is considered to be either "meat" or "milk". The crockery, cutlery and cooking utensils are washed and stored separately. To ensure that this is done, Highlands House has a permanent "Masgiach" - a supervisor approved by the Union of Orthodox Synagogues. During an eight day period over Pesach - the festival celebrating the exodus from Egypt - all the dishes and cutlery in Highlands House are changed. During this time no bread is available and is replaced with unleavened bread ("Matza"). Because of this and the "Kashrut~ system, Highlands House has to maintain four separate and distinct sets of cutlery, crockery and cooking utensils.

44.3. No activities are permitted at Highlands House on Saturdays except for Shul services. Thus the shop, hair salon and activity room etc. are all closed.

44.4.Every door and in particular every bedroom in Highlands House is adorned with a "Mezzusah", which indicates that it is occupied by a Jewish person. The "Mezzusah" has in it a prayer in appreciation of Judaism. Much of the art and wall hangings in Highlands House have a Jewish theme, and much of the entertainment at Highlands House has a distinctly Jewish flavour.

44.5.Finally, the manner in which death is handled is different from other religions, and all of the relevant dictates in this regard are followed ~ Highlands House.

45.Considering the small size of the Jewish community, it would not be possible to offer these specific comforts and facilities to its aged residents in a facility which is demographically representative of the broader society.

46.Furthermore, if persons who are not Jewish were admitted to Highlands House, their religious beliefs would at the very least have to be

accommodated. To ensure equity, a church, mosque or temple would have to be built and access to religious leaders be arranged.

47.In this regard, section 12(f) of the Bill states that "an older person in a facility has ... the right to ... participate in social, religious and community activities of his or her choice." This is a fair and reasonable requirement in a pluralistic democracy. The upshot, however, is that a religious based facility such as Highlands House would be placed in an impossible situation in which it was forced to be all things to all people.

Impairment of the human dignity of others [section 14(3)(a) of Pepuda]

48.The fact Highlands House only admits Jewish people is greatly ameliorated by the fact that there is no victim or group of victims who are specifically excluded because of any specific trait or characteristic.

49.The exclusion of persons who are not Jewish is not based on exclusivity or beliefs of superiority to others. The religious exclusivity is an affirmation of Jewish religious, traditional and cultural values and is neither intended nor acts as an affront to the dignity, value and self-worth of any other person.

50.Furthermore, many other facilities are available for persons who are not Jewish throughout the Western Cape. In the City Bowl area of Cape Town (i.e. the area in front of Table Mountain where Highlands House is situated), there are at least eight homes for the aged. By contrast, Highlands House is the only Jewish home for the aged in the Cape Town area.

Impact on others [section 14(3)(b) of Pepuda]

51.As noted above, there will be no victims of the discrimination practised by Highlands House. Similar facilities are available in non-Jewish homes for the aged in the Cape Town. There will thus be no practical impact or any impact on the dignity of persons who are not Jewish.

The position of others in society [section 14(3)(c) of Pepuda]

52.Once again, it must be noted that there is no specific victim or group targeted by Highlands House's practices.

53.In particular, it must be mentioned that the exclusion of persons who are not Jewish does not target any vulnerable group in society.

54.In fact, Highlands House offers protection for vulnerable and aged members of a religious minority and gives them the freedom to practice that religion in a familiar and accommodating setting.

The nature and extent of the discrimination [section 14(3)(d) of Pepuda]

55.The discrimination practised by Highlands House is solely between persons who are not Jewish and those who are not. No distinction is made between members of the Jewish community whether they are orthodox or reform; and regardless of their ethnicity and race.

56.The discrimination is not between a dominant or powerful group and a powerless one; and does not target members of a vulnerable group.

Whether the discrimination is systemic in nature [section 14(3)(e) of Pepuda]
nature, regard must be given to "social and economic cleavages in society". A systemic inequality is one which is "rooted in the structures, systems and institutions of society".

58.In effect, a discriminatory practice is systemic if it is based on a societal fissure, and if it compounds the prejudice of socially and economically vulnerable groups. The distinction between Jews and non-Jews is not a fissure which has particular resonance in our present society. Historically, Jewish people have enjoyed economic success, but have been the victims of social prejudice rather than its beneficiaries.

59.The group of persons who are not Jewish includes the vast majority of South Africans across the social and economic spectrum. Being labeled or treated as a 'non-Jew' does not render anyone more vulnerable.

60.In the specific context of homes for the aged, non-Jews are not denied access to such facilities. Many facilities exist to accommodate non-Jews, which give differing levels of comfort at different prices.

Legitimate purpose [section 14(3)(f) of Pepuda]


61.Since the birth of an organised Jewish community in South Africa about 150 years ago, its community leaders have been motivated by a desire to maintain their identity as a community; to promote the identification of the community's members as Jews; to ensure the continuity of the community; to promote and practice the Jewish religion as a way of life; and to make it possible for members of the community to conduct their lives in conformity with the dictates of religion.

62.These remain legitimate interests. It must be highlighted that the South African Constitution does not enforce a 'melting pot' approach to difference but recognises and protects cultural, language and religious differences in a heterogenous society.10

63.As stated in the Canadian case of Alberta Union of Provincial Employees V Attorney General of Alberta (1987) 28 CRR 305, "association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to obtain their purposes and fulfilment of their aspirations. It has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and perhaps conflict."11

64.The Jewish aged homes in South Africa resemble those established generations ago in other Jewish communities in other parts of the world. The principles motivating the homes in South Africa are largely the same as similar institutions in the United Kingdom, the United States of America, France, Canada, Argentina, Brazil, Mexico, Zimbabwe and many other countries. In none of these countries have anti-discriminatory laws found the establishment of Jewish homes for the aged to be unlawful or unfairly discriminatory.

Where and to what extent does the discrimination achieve its purpose [section 14(3)(g) of Pepuda]

65.Highlands House achieves its purpose in that it would be impossible to provide a Jewish "home from home" in any other manner.

66.With regard to this supporting community, it is a well known fact that they support many institutions throughout the country irrespective of race, colour or creed. It is only fair that they should be entitled to give generously to a body that supports elderly members of their own community.

67.Many Jewish persons make donations to Highlands House based on communal duty, even if they do not have a relative at the House. As a practical measure, individuals are reluctant to give unless the cause is one which strike a personal chord. If Highlands House is no longer exclusively open to persons who are Jewish, the donations from the Jewish community are likely to be curtailed. The result will be that Highlands House will be forced to close completely, and the burden to maintain its 200 residents will be placed on the State.

Less restrictive means [section 14(3)(h) of Pepuda and section 36 of the Constitution]

68.Unfortunately, in the absence of a discriminatory admission policy, the purposes of Highlands House could not be achieved. It would not be practicable to accommodate residents from other religions (or with no religion).

69.At the very least, these individuals would have to be accommodated in a manner which is sympathetic and accommodating of their own beliefs. This may require; for example, other dietary requirements, other requirements for the maintenance of the kitchen, the removal of the "Mezzusah" from some doorways, opening entertainment facilities on the Sabbath, making available religious leaders, and accommodating different practices regarding the dead etc. In order to be equitable, it may require the construction of a church, mosque or temple.

70.It would be even more offensive to have to screen potential residents from other groups to ensure that their lifestyle and religious and social beliefs


70 accord with Jewish practices. This would in any event violate the requirement in section 12(f) of the Bill that older persons must be given the choice to participate in religious activities of their choice.

71.Accordingly, in consideration of the particular practices of Judaism, the fact that Jews are numerically a small minority, and the fact that the aged require particular religious needs (i.e. available and accessible places of worship), it would be unfair to expect Highlands House to accept members of other religions.

Reasonable steps to address the disadvantage and accommodate diversity [section 14(3)(i) of Pepuda]

72.As a receiver of donations, Highlands House is not in a position to make financial assistance available to other homes for the aged.

73.Highlands House distributes unused aids for the elderly to organizations and homes in disadvantaged communities. Unused bedding and other equipment is also distributed to relief programmes after emergency situations (for example, after the fire in the Joe Slovo area).

74.Highlands House is also opened to students to perform a practical component of their studies under the guidance of Highlands House's professional staff.

74.1.Students from the Departments of Occupational Therapy, Physiotherapy and Social Work at the University of Cape Town do 'block releases' (i.e. their practical) to Highlands House for up to six weeks a year. The students are from a diverse range of backgrounds and are supervised by Highlands House's professional staff.

74.2.Members of the Departments of Dietetics at the Universities of Cape Town and Stellenbosch visit Highlands House regularly in order to understand the basic dietary requirements of Jewish people.

74.3.A-Friend-in-Need is a programme based in Khayelitsha which runs a course to enable people from disadvantaged communities to be care-givers to people who are in need in their own community. A component of theoretical study is done in Khayelitsha, after which some students do a three week practical at Highlands House. In this time they are tutored on how to care for the elderly. They then return to their communities and assist with home based care. The course is registered with the applicable Sectoral Education and Training Authority (SETA).

74.4.The Department of Social Services and Welfare has also made it clear that it supports the concept of home-based care rather than State funded institutions.

75.Highlands House has established a forum for all old age homes in the region which meets on every six weeks to discuss common problems and share experiences. There are plans to extend this into an educational form.

THE PROTECTION OF RELIGION-BASED FACILITIES IN OTHER JURISDICTIONS

76.In terms of section 39(2) of the Constitution and section 3(2) of Pepuda, the provisions of international law and comparable foreign law should be taken into account in considering issues of equality. This is particularly useful in analyzing the approach in foreign jurisdiction to measures designed to provide benefits to a particular religious community.

(a)United States of America

77.The US Fair Housing Act (the "FHA" - contained in Title VIII of the Civil Rights Act of 1968 and codified as amended in 42 USC 3601-3619) outlaws certain practices, including in 3604(a) and (b) discrimination on the basis of religion.12

78.The FHA does apply to homes for the aged generally, save of course that such homes can limit the age of inhabitants and refuse people with children (based on the rationale that older people want to be with older people).13

79.However, 3607(a) continues that "[n]othing in this subchapter shall prohibit a religious organisation, association, or society, or any non-profit institution or organisation operated, supervised or controlled by or in conjunction with a religious organisation, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, colour, or national origin ...,'.

80.This effectively means that religiously exclusive homes do not constitute unfair discrimination provided they are not run for commercial gain.14

12
3604 (a) and (b) define t,,',o of the restricted practices as follows:
"(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny. a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."
13
(b)England

81.The European Convention on Human Rights was ratified in England in

1953. This did not contain a self-contained anti-discrimination clause, but section 14 declared that the other rights in the Convention were to be applied without discrimination on several bases, including religion. These rights included the freedom of thought, conscience and religion (article 9) and freedom of association (article 11).

82.The twelfth protocol to the Convention added a general prohibition against discrimination. The Convention is now directly enforceable in English Courts following the enactment of the Human Rights Act of 1998, which came into force fully on 2 October 2000.15

83.Even before the Human Rights Act came into force, the Race Relations Act,

1976, outlawed discrimination based on "colour, race, nationality or ethnic or national origins". This Act has also been applied in the context of religious discrimination.16

84.Section 21 deals in particular with the rental or sale of premises.17 Section

25 similarly outlaws associations with more than 25 members from

connected with the carrying on by such corporation, association, educational institution, or society of its activities." Title V similarly creates a commission, while 1 04(a)(6) specifically bars it from inquiring "into or investigat[ing] any membership practices or internal operations of any
religious organization."
15 Bradley and Ewing constitutional and Administrative Law 13 ed (2003) at 419-421
16 See, for instance, Mandla V Dowell Lee [1983] 2 AC 548, which dealt with a school rule which

discriminating against any person in their membership requirements. Section 26 however excludes an organisation which has as its main aim the intention to provide benefits to persons of a particular group, as long as that group is not defined by colour.

85.An organisation which benefits persons of a particular group (including a religious group) would thus not fall foul of the discrimination laws.

(c)Canada

86.Section 3(1) of the Canadian Human Rights Act prohibits discrimination on several bases, including religion.18

87.Section 5 continues that "it is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination."

88.Section 15(1 )(g) however states that it is not a discriminatory practice if "an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation."

(2)It is unlawful for a person, in relation to premises managed by him, to discriminate against a person occupying the premises-

(a)in the way he affords him access to any benefits or facilities, or by refusing or
deliberately omitting to afford him access to them; or

(b)by evicting him, or subjecting him to any other detriment. 18 Section 3(1) states as follows: "For all surposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted."

89.In Vriend vAlberta 1983 SCR at para 124-5, the Canadian Supreme Court held that a comparable provision in a provincial statute (of Alberta) amounted to an "internal balancing mechanisms" to accommodate the interests of religious groups which had to be determined on a case-by-case basis.19

90.A religiously exclusive home for the aged could thus be permissible if it could justify its existence. The means in which a home could justify its existence in this manner is very similar to the approach in South Africa, as discussed above.

(d)Australia

91.Discrimination on the basis of religion is dealt with in the Australian Human Rights and Equal Opportunity Commission Act, 1986, which creates a Commission permits it to investigate and report on allegations of discrimination. The Act does not, however, contain any statement outlawing discrimination on this basis.

92.Section 9(1) of the Australian Racial Discrimination Act 1975 states as a general principle that "[it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."20

21
93.This provision repeats the language of international law instruments and, as in England, will also apply in cases of religious discrimination.

94.For current purposes it is significant to note that section 8(2)(a) states that section 9(1) does "not apply to any provision of a deed, will or other instrument, whether made before or after the commencement of this Part, that confers charitable benefits, or enables charitable benefits to be conferred, on persons of a particular race, colour or national or ethnic origin".

95.Once again, a home for the aged would be exempt even though its benefits are aimed exclusively at a particular group of people.

CONCLUSION
96.The Bill in its current form is unconstitutional because it constitutes a violation of rights contained in the Bill of Rights and such a violation is not "saved" by the limitations clause in section 36 of the Constitution.

97.There are various ways in which such unconstitutionality can be cured whilst the purpose of the legislation is maintained.

97.1.First, the concept of "unfair discrimination" in section 9(1) of the Bill should be defined to mean the same as its meaning in Pepuda;

97.2.Secondly, the requirement set out in section 9(2) of the Bill should be qualified. The requirement concerning the consideration for determining eligibility for admission to facilities contained in section 9(2) of the Bill should only be operative when unfair discrimination based on race is involved; and


97.3.Thirdly, and in the alternative, the Minister should be granted the power under section 5 of the Bill to exempt any facility from the obligation to satisfy the requirements of section 9(1), read with sections 9(2) and 9(5) of the Bill.

ANTCN KATZ

DAVID BORGSTROM

Counsel for the Highlands House
Chambers
Cape Town

22 August 2005