The Act prohibits any form of unfair discrimination in line with the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000) and the Constitution.
Section 8 of the Act states that a supplier may not, on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth:
(a) exclude any person or category of persons from accessing any goods or services offered by the supplier;
(b) grant any person or category of persons exclusive access to any goods or services offered by the supplier;
(c) assign priority of supply of any goods or services offered by the supplier to any person or category of persons;
(d) supply a different quality of goods or services to any person or category of persons;
(e) charge different prices for any goods or services;
(f) target particular communnities, districts, populations or market segments for exclusive, priority or preferential supply of any goods or services; or
(g) exclude a particular community, district population, or market segment from the supply of goods or services offered by the supplier.
A supplier must not directly or indirectly treat any person differently in a manner that constitutes unfair discrimination on one or more of the grounds referred to above, when:
(a) assessing the ability of the person to pay the cost, or otherwise meet the obligations of a proposed transaction or agreement;
(b) deciding whether to enter into a transaction or agreement or to offer to do so;
(c) determining any aspect of the cost of a transaction or agreement to the consumer;
(d) interacting with the consumer (i) in the supplier’s place of business (ii) in the course of displaying or demonstrating any goods, testing or fitting them, or negotiating terms;
(e) selecting, preparing, packaging or delivering goods for or to the consumer or providing any services to the consumer;
(f) proposing or agreeing the terms and conditions of a transaction or agreement;
(g) assessing or requiring compliance by the person with the terms of a transaction or agreement;
(h) exercising any right of the supplier under a transaction or agreement in terms of this Act or applicable provincial consumer legislation;
(i) determining whether to continue, enforce, seek judgement in respect of or terminate a transaction or agreement;
(j) determining whether to report, or reporting any personal information of such person.
It is not discrimination per se that is prohibited, but discrimination that is unfair. The unfairness is to be determined within context, and taking into account various factors, such as whether the discrimination has a legitimate purpose.
The Equality Court has jurisdiction to consider whether conduct between a supplier and a consumer constitutes unfair discrimination even though such conduct was not contemplated in Section 8 of the Act.
Reasonable grounds for differential treatment in specific circumstances are as follows:
- Minor Children: It is not unfair for a supplier to refuse to supply goods or services to a minor or to require consent from the parents or guardian before supplying or providing access to any particular goods or services as a reasonable precaution to protect the health, welfare or safety of the minor, unless the supplier has reasonable grounds to believe the minor is emancipated.
- Gender: A supplier may designate separate but equal facilities for the exclusive use of persons of each gender or offer to supply or provide access to a facility exclusively to persons of one gender.
- Specific needs: A supplier may market any goods or services in a manner that implies or expresses a preference for a particular group of consumers who are distinguishable from the general population on the basis of Section 9 of the Constitution if those goods or services are reasonably intended or designed to satisfy the specific needs or interests that are common to or uniquely characteristic of that particular group of consumers.
- Age: A supplier may reasonably designate any facility or service, permanently or from time to time for the exclusive use of minors generally, minors who are above or below a specific age, or adults who have attained a specified age of at least 60 years, and may advertise or offer any goods or services at a discounted price on the basis that a minor had not reached a certain age or an adult has attained the age of at least 60 years old.
A accredited consumer group or an aggrieved consumer may:
(a) institute proceedings before an Equality court, or
(b) file a complaint with the Commission, which must refer the complaint to the Equality Court if the complaint apprears to be valid.
Section 10 sets out how the courts should approach the complaint, and states that there is a presumption that any differential treatment is unfair discrimination, unless it is established that the discrimination was fair.
The onus is on the supplier to prove that any differential treatment of a consumer was based on discrimination that was fair.