Racial discrimination- consumers can use CPA to obtain justice

Did you know that the Consumer Protection Act deals with racial discrimination aimed at consumers by suppliers?

It is not uncommon to hear of cases where suppliers discriminate against consumers based on
their race. Examples are some retailers’ discriminatory practice of subjecting black consumers
to searches on exit or when black consumers are denied rental opportunities based on race.
It will not amount to discrimination if an applicant is excluded from rental due to independent
criteria such as their credit record, references etc.

Discrimination can have the effect that a consumer-

  • is excluded from accessing goods or services due to their race, or
  • has to wait for access to those goods or services because another race has been
    given priority,
  • is offered a different quality of goods or services, or charged a different price
    for the same goods or services

Most consumers don’t know about the avenues available to address consumer racial discrimination
in the Consumer Protection Act (CPA).

The CPA prohibits any form of unfair discrimination between consumers as enshrined in the
Constitution of South Africa. By offering consumers a right to equality and fair treatment in
the consumer market, the CPA is a potent weapon for consumers should they be subjected to unfair
racial discrimination.

How does it work?

  1. The discrimination must be unfair

By way of example, withholding an apartment from rental by a person merely because of their
skin colour amounts to unfair racial discrimination and is prohibited. However, should a supplier
differentiate their product offering between black and white consumers, for example by offering
separate hair care products specifically for each race on the basis of differences in hair
characteristics, that will not amount to unfair discrimination.

  1. What is protected?

Section 8 of the CPA gives each consumer the right to be treated equally. It prohibits:

  • unfair exclusion and
  • direct or indirect differential treatment of consumers,

in the marketing or supply of goods or services on the basis of an unfair ground of discrimination
(for example, discrimination based on race, language, gender, age, sexual orientation etc.).

  1. Who is protected?

Any individual who experiences unfair discrimination as a consumer is protected. Also, any juristic
person (a company, CC, trust, association, partnership, body corporate, trade union etc.) is
protected if the discrimination is based on characteristics of a human being who is either a

  • member,
  • associate,
  • owner,
  • manager,
  • employee,
  • client or
  • customer

of the juristic consumer.

What this means is that should a supplier unfairly discriminate against a consumer on the basis
that the consumer’s client base is predominantly of a certain race, then the consumer, although
a juristic person, can use the tools in the CPA to seek redress.

  1. What can you do if you’ve suffered discrimination?

The CPA protects you even if you are under threat of unfairly racial discrimination, as well as
if you have suffered actual unfair racial discrimination. Section 4 of the CPA gives you the
right to approach the Equality Court to complain about the behaviour of the supplier.

You need to demonstrate to the Tribunal or the Equality Court that there was discrimination
(a difference in treatment) against you. There is a presumption of unfairness, so the
responsibility is on the supplier can prove any discrimination was fair. If the Court or
Tribunal decide that there was unfair discrimination, they can order:

  • payment of damages to you, or
  • a referral of the matter to the SA Human Rights Commission or to the NPA for
    possible institution of criminal proceedings.

The CPA therefore provides sturdy protection for consumers against discrimination, especially
racial discrimination. Suppliers are advised to familiarise themselves with these provisions
and train their staff appropriately.

  1. Equality Court

You can find a list of the Equality Courts in South Africa at:

http://www.justice.gov.za/EQCact/eqc_courts.html.

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