It happens very often that a client calls regarding ‘unfair discrimination’ which is believed to be occurring in various instances, such as, at sports clubs, at work in the employment context or at social venues.

This article is furnished, in plain language, to make it easier for clients to better understand what discrimination is, when it is fair and unfair generally, and particularly in the areas of labour or employment law, administrative law, sports and sports law, schooling or education law.

What is Discrimination?

Essentially in general terms:

discrimination means the behaviour or practice of forming of opinions about others not based on their individual merits, but rather their membership in a group with assumed characteristics.

Discrimination (or prejudice as it is sometimes referred to) usually is motivated by the intention of one person to obtain a benefit, favour or opportunity, directly or indirectly, which is denied to another person without fair reason or at the expense of the latter.

It can also be motivated by the intention to marginalise or disenfranchise any person where the latter is thought to be or perceived to be a threat or rival to the person initiating the discrimination.

In terms of statutory law, discrimination occurs when a person engages in conduct which shows favour, prejudice or bias for or against a person on any arbitrary grounds e.g. on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age disability, religion, HIV status, conscience, belief, political opinion, culture, language.

While anti-discrimination laws may vary between various jurisdictions in regard to purpose and content, in South African law it is important to understand that discrimination can be fair or unfair and the legal significance of the difference is immensely important.

Education as to the law of unfair discrimination is vital in this respect as is the ability to overcome ignorance, prejudice and bigotry.

In what circumstances is discrimination ‘fair’

The law sets out four grounds on which discrimination is generally permissible:

1. Compulsory discrimination by law;
2. Discrimination based on affirmative action;
3. Discrimination based on inherent requirements of a particular job;
4. Discrimination based on productivity.

In labour law, in regard to compulsory discrimination, the law does not permit an employer to employ children under the age of 15 years or any pregnant women four weeks before confinement and six weeks after giving birth.

Furthermore, in labour law, discrimination by an employer based on the inherent requirement(s) of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required job qualifications. If such requirements can be shown, discrimination will be fair, e.g. if a person with extremely poor eyesight cannot be employed as a pilot or be enlisted in the military.

It is also fair in law for the employer to discriminate on the basis of productivity (or the lack thereof) when determining salary increases, e.g. increases based on meritorious work or service, or promotions, overseas travel for work, perks and other employment enhancing opportunities or employment fulfilment. This is dependent on the fairness of the underlying criteria utilised for assessing performance, productivity and the other inherent requirements for the opportunities.

Unfair discrimination occurs when…

In South African statutory law, discrimination is prohibited not only by the Constitutional guarantee itself in terms of section 9 of the Bill of Rights, but also in terms of the Prevention of Unfair Discrimination Act 4 of 2000, as amended (the Promotion of Equality and Prevention of Unfair Discrimination Act, is it’s full title), which is basically the machinery which gives effect and substance to the Constitutional guarantee, subject, of course, to the limitation clause.

In a nutsell, the Act prohibits unfair discrimination in South Africa by the government and by private organisations and individuals.

This includes associations or entities such as universities, technikons, schools, crèches, nursery schools, sports clubs, country clubs, non-profit organisations, charitable entities, places of worship, private and public companies.

Most importantly, the discrimination law also covers:

• the actions; or
• inaction of such entities or associations:-
• and includes those of it’s-

• members,
• elected directors or representatives,
• committees or managers,
• chairpersons,
• treasurers,
• caterers,
• staff and the like when exercising:
  • any right,
  • entitlement,
  • function,
  • or power in terms of their office or membership.

Decisions regarding participation or team selection or members’ selection by committees of schools, sport clubs and the like, for individual-participant sports or team sports such as league teams, league participation, regional sports participation are all subject to the Act and unfair discrimination is prohibited in this regard.

In regard to ‘r and r’, in respect of the utilisation by members (or in fact visitors) of sports club facilities, venues, bars, restaurants and the like, unfair discrimination practices and conduct is prohibited. It matters not that such clubs or venues are ‘private clubs’.

Right of admission signs or notices do not per se enable circumvention of anti-discrimination laws. The Rule of law prevails.

Unfair discrimination can also occur in respect of conduct (actions or inaction) which has the effect of ignoring or marginalising or disenfranchising persons (or their views or opinions) arbitrarily, whether intentionally or not.

It can also occur in regard to the right to access information of such entities or associations or sports clubs in respect of constitutional documentation, minutes of meetings, financial information, contractual information, documentation evidencing decision-making procedures or processes, employment guidelines, employment contracts and the like.

Disabilities and/or Impairments

The Act also prohibits unfair discrimination against an individual who has a ‘disability’ if he or she has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment.

It is thus imperative to ensure that when considering legal action in regard to unfair discrimination that expert legal advice is sought to ensure that any such claims are meritorious and professionally considered in law.

ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™

The following significant cases demonstrate the extent of the vast scope of unfair or anti-discrimination litigation in South African law and the subject matter thereof

• President of the Republic of South Africa and Another v Hugo(1997) — a presidential decision to remit the sentences of imprisoned mothers with young children is not unfair discrimination against similarly-situated fathers.
• Prinsloo v Van der Linde and Another(1997) — a law which imposes a different onus of proof in civil cases involving forest fires does not deny equal protection of the law or amount to unfair discrimination.
• Larbi-Odam and Others v MEC for Education (North-West Province) and Another(1997) — a government policy prohibiting the employment of non-citizens as school teachers is unfair discrimination.
• City Council of Pretoria v Walker(1998) — a municipality’s policy of charging a metered rate for water and electricity in formerly white areas but a flat rate per household in formerly black areas, with the effect that the residents of the white area pay higher rates on average, is not unfair discrimination, as the facilities provided to different areas are significantly different. However, the policy of suing to collect payments in arrears from residents of the white areas, but not suing similarly-situated residents of the black areas, is unfair discrimination.
• National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others(1998) — the criminalisation of male same-sex sexual relations is unfair discrimination on the grounds of gender and sexual orientation.
• National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others(1999) — an immigration law which provides benefits to married couples discriminates on the basis of sexual orientation and must be extended to provide the same benefits to same-sex life partners.
• Hoffmann v South African Airways(2000) — a government-owned airline’s policy of refusing to hire HIV-positive people as flight attendants violates the right to equality.
• Satchwell v President of the Republic of South Africa and Another(2002) — pension and retirement benefits provided to the spouses of judges must be equally provided to the same-sex life partners of judges.
• S v Jordan and Others(2002) — the gender-neutral criminalisation of prostitution does not discriminate unfairly against women.
• Khosa and Others v Minister of Social Development and Others(2003) — social welfare grants provided to South African citizens must also be provided to non-citizen permanent residents; to do otherwise is unfair discrimination.
• Bhe and Others v Magistrate, Khayelitsha, and Others(2004) — the rule of male primogeniture in the African customary law of inheritance discriminates unfairly against women and against younger children.
• Minister of Home Affairs and Another v Fourie and Another(2005) — the denial of marriage to same-sex couples is unfair discrimination on the basis of sexual orientation. (rf same-sex marriages in South Africa.)

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright.

I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise,

nor riches to men of understanding, nor yet favour to men of skill, but time and chance happeneth to them all.

-Ecclesiates 9:11.

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Sport(s) law is the body of law which prescribes the laws pertaining to sports in general and the various aspects of business and society’s interaction with sports and sporting events.

Sports law includes the law such as the law of contracts, the law of delict, the law of damages, international law, public law involving government departments, such as municipalities and indeed the law pertaining to the interaction of participants in sports which are regulated by the national, provincial and local sports bodies themselves in terms of their own constitutions and membership contracts or agreements. Sports lawyers deal with these and many other related matters.

Other personal and commercial aspects of the law relevant to Sports law include, namely, personality rights such as image rights, labour law, advertising and marketing legal principles applicable to a particular sports persons, an event, tournament or sport as a whole.

For major international sports events such as the FIFA World Cup and the Olympic Games, host countries are obliged to enact domestic legislation for the hosting of such events, as occurred in South Africa for the 2010 FIFA World Cup. The purpose of such legislation is to guarantee the rights of the events to be staged and also, inter alia, for the guaranteeing and security of performance of obligations by governments for international sporting events and the sponsors investments therein.

With sport being such an important aspect of contemporary society, it follows that the law should regulate sport and so it does.

In South Africa, Sports law is of course subject to the Constitution (Act 108 of 1996) incorporating the Bill of Rights, and the rule of law. In this context, various cases have come before the Higher Courts, notably such as SARFU v President of the Republic of South Africa (1998) 1 BCLR 1256 (T).

Individual sports disciplines including kids sports (such as football or soccer, cricket, tennis, athletics, horse-racing, motorsports, Formula 1, rugby, gymnastics, equestrian, aquatics, bowls, squash etc) have their own ‘laws’ or rules which are applicable to participation therein. These laws consist of the rules of the sports which include collateral aspects such as participation or attendance of fans, the media coverage, the use of drugs and enhancing substances and illegal performance-enhancing substances. These laws also include the rules of clubs, voluntary associations, provincial or state sports bodies, national sports bodies, international sports bodies known as federations or confederations all of which exist in terms of their own rules agreed to by their members (rf FIFA, UEFA, CONMEBOL, CONCACAF, ITF, ATPTOUR, IRB, ICC, WADA, NBA, NFL, FA Premier League to name a few).

Sport is of course subject to the general law of the country which includes all municipal by-laws such as provisions pertaining to the sale of alcohol and the protection of minor children at sporting events and sports clubs. In addition, the various laws in regard to promotion of equality, non-discrimination, freedom of association and the rules of natural justice pertaining to equality and equity of choice and selection for participation are applicable to all sports.

In light of the fact that sport is also a major business in many respects, the laws of trademarks, passing-off, unlawful competition, logos, contracts, broadcasting rights, copyright, employer-employee relationships, media rights, rights of spectators, law of defamation, criminal law in regard to unruly crowd behaviour, riots, assault and various other common laws are all applicable to sports and sporting events (rf Moroka Swallows Football Club Ltd v The Birds Football Club and others 1987 2 SA 511 (W) in regard to passing-off).

Sports law contracts

Typically, the following contracts are utilised daily in Sports law:

• Commercial rights agreements;
• Stadium use agreements;
• Stadium naming rights agreements;
• Broadcasting, web-streaming and photography agreements;
• Licensing agreements;
• Sponsorship & Merchandising agreements;
• Players employment or participation agreements;
• Appearance fee agreements for marquee players;
• Management agreements;
• Lease agreements for sports facilities;
• Clubs and sponsors agreements;
• Clubs and service provider agreements;
• Event management agreements;
• Catering service agreements;
• Security service agreements.

Common law

One of the most important common law principles applicable to participation in sporting events is that of volenti non fit iniuria, which essentially means that no injury is committed against one who consents to injury.

The law has recognised that certain sports carry with them an inherent danger and risk of injury to protagonists and spectators and thus volenti non fit iniuria finds regular application. However, there are exceptions particularly in the law of England where injuries sustained in sport where found to be committed intentionally, negligently and not in the spirit of the game, and damages were awarded in such matters in addition to other punitive measures.

A further aspect of the law in general which is applicable to sports and more particularly sports clubs, is that of sports-betting, sports pools, wagering and lotteries. These activities are very important in regard to the income and fund-raising for sports clubs, but have very particular laws regulating same and naturally there is always the question of sports tax and taxes to be paid to the receiver (rf Fund-raising Act 107 of 1998; Non-profit Organisations Act 71 of 1997; Lotteries Act 57 of 1997; Income Tax 58 of 1962).

Conduct in sports

Very germane to the issue of conduct and damages in Sports law is the issue of the fair conduct of participants in sport. Maliciously or recklessly injuring an opponent can result in damages and possible criminal action against the perpetrator.

In regard to civil damages, it is apposite to understand that as far as sport and the law is concerned the standard of conduct of the reasonable man[1] is expected in sports participation and more specifically, the standard of conduct of the knowing or professional sportsman or sportswoman, which places a higher threshold[2] on the participants.

Sports law – Clubs & Associations

In South Africa, as in most countries, organised sport is conducted by individuals typically in groups or associations. Associations themselves also engage in organised sports in leagues, competitions and in local, provincial and national sports events as unions, which recently take the form of non-profit companies.

There is no requirement in South African law for a sports club, country club or other voluntary associations or sports-minded people to take any particular legal form.

Voluntary associations are generically defined to be a voluntary relationship between three or more persons to achieve a common object or interest, which is usually not for profit making. The object or interest may be any lawful social, sports, scientific or otherwise object or interest. These associations do not have legal personality per se, but can derive the common law personality of a universitatis. (rf Malcomess and Co v Kuhn 1911 CPD 546)

Clubs, sports clubs, country clubs and other sporting entities bind their members to membership in furtherance of the object in terms of their constitutional documents. These are mutual agreements between the members and record, inter alia, the terms of membership, standards of behaviour, rules of the club, participation requirements and various other matters pertaining to the club and its administration.

On many occasions the agreements and rules of membership have been challenged in the higher courts in more ways than one. (rf Valkin and Another v Daggafontein Mines Ltd and other 1960 2 SA 507; Constantinides v Jockey Club of SA 1954 3 SA 35 (C); Turner v Jockey Club of South Africa 1974 3 SA 633 (A); Jockey Club of SA v Transvaal Racing Club 1959 1 SA 441 (AD); Garment Workers Union v De Vries 1949 1 SA 110 (W).

It is thus imperative that all sports clubs, country clubs, sports associations pay particular attention to Sports law (as it grows exponentially year on year) to ensure sound legal governance of their clubs and associations in compliance with the law.

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright

[1] The average man of society who goes about his affairs in a reasonable fashion with ordinary prudence and thought.

[2] Therefore a higher standard of knowledge, skill and competence of a man professing to have same.

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