WeeklySA_AdminDILEMMA: Companies might have to prove fairness of differential discounts
Companies offering exclusive discounts to the vaccinated might find themselves facing lawsuits from consumers, according to Dr Tshepiso Scott, a lecturer and an expert in Consumer Law at the University of Pretoria.
Those who may sue include consumers who are unable to take the vaccination or do not wish to do so for any other reason, says Scott. However, these consumers would have to prove that they are being discriminated against.
Similarly, the companies offering exclusive discounts favouring the vaccinated would also need to prove that their differential treatment of consumers based on their vaccination status was fair,” she says.
“The suppliers could argue fairness on the basis of factors such as the legitimate purpose of reducing the spread of COVID-19; the nature and extent of discrimination, and other factors provided for in section 14(3) of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).” she says.
She said, in terms of Section 8(1)(a) of the Consumer Protection Act 68 of 2008 (CPA), a supplier is prohibited from unfairly excluding persons from accessing goods and services on the basis of the prohibited grounds under section 9 of the Constitution OR Chapter 2 of PEPUDA.
“Whilst discrimination on the basis of health or vaccination status is not expressly set out as a ground for discrimination in the Constitution, it could be considered as a ground for discrimination under section 6 of PEPUDA,” says Dr
Scott. She says Section 6 of PEPUDA prohibits unfair discrimination generally by the state or any other person, without referring to a particular ground.
Scott says guidance can be taken from the definition of “prohibited ground” in PEPUDA, which includes any ground that causes or perpetuates systemic disadvantage; undermines human dignity; or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to the specific grounds listed in under paragraph (a) of the definition, namely race, gender, sex etc.
However, Section 6 is the section that the consumer will need to place reliance on as it falls under Chapter 2 of PEPUDA. “Therefore, a consumer’s vaccination status could be a potential ground for discrimination under PEPUDA.’’
However, the onus will be on the consumer or their representative to prove that discrimination on the basis of their vaccination status falls under the broad catch-all ground for discrimination under section 6 of PEPUDA, she says.
Once differential treatment based on a prohibited ground has been established, the CPA creates a presumption that the differential treatment is unfair, unless proven otherwise, she says. The supplier will have to prove that the differentiation is fair, says Scott. She adds that it will be up to the courts to weigh the competing interests of public health and safety versus equal treatment of consumers.
She said insofar as insurance policies are concerned, the CPA does not apply in terms of the Financial Sector Regulation Act 9 of 2017. Therefore, the CPA would have no bearing on the charging of varying premiums to customers dealing with companies such as Discovery. That would fall within the ambit of the financial sector regulatory forums.
what Consumer goods and Services Ombuds says…
The Consumer goods and Services Ombuds, Magauta Mphahlele concurred with Dr Scott.
“The important phrase to note here is “unfairness”. In order to determine whether the actions mentioned are unfair or not, only the Equality Court and the Courts have the jurisdiction to make this determination,” she said.
The reason for this is that the Courts must weigh up a lot of factors, including balancing the rights of individuals against the common good and reasonability.
“The pandemic has devastated the economy, killed thousands of individuals, led to job losses and burdened the health system,” she says. Mphahlele says the President has indicated that only through vaccination will the country minimise the devastating impact of the pandemic.
“At the same time some citizens have concerns about the health effects of the vaccinations,” she says. Magauta says the Courts have to consider whether giving discounts or factoring vaccination status into the risk pricing of insurance products can be seen as incentivising people to vaccinate so that the country can achieve herd immunity or whether it is unfair discrimination, she says. In view of the above the CGSO advises consumers to lodge complaints with the Equality Court.
The Equality Courts are in the same building as the Magistrates’ Courts. Each Magistrate Court has a clerk called an Equality Court Clerk who has been trained to help the public with any equality matters.
IMPLICATIONS OF SELECTIVE DISCOUNTS FOR THE VACCINATED
• Suppliers offering incentives may find themselves facing litigious action from consumers who are unable to take the vaccination or do not wish to do so for any other reason.
• Consumers would have to prove that they are being discriminated against.
• The supplier will have to prove that the differentiation is fair on the basis of reducing the spread of COVID-19; the nature and extent of discrimination, and other factors provided for in section 14(3) of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
• Section 6 of PEPUDA prohibits unfair discrimination generally by the state or any other person, without referring to a particular ground.
• Consumer’s vaccination status could be a potential ground for discrimination under PEPUDA.
• Section 8(1)(a) of the Consumer Protection Act 68 of 2008 (CPA), prohibits suppliers from unfairly excluding persons from accessing goods and services on the basis of the prohibited grounds under section 9 of the Constitution OR Chapter 2 of PEPUDA.
• Courts will have to weigh the competing interests of public health and safety versus equal treatment of consumers.
