SADULLA KARJIKER: Don’t allow businesses to treat us as second-class citizens

Given the times, it is important that I preface my article with some “disclaimers”. As someone who specialises in trademark law I am fully aware of the importance of marketing and establishing a strong brand. I endorse the policy of free and active competition in SA, as recognised by our legal system.   

However, no society is without normative constraints, and nor do we have a system of unbridled capitalism. Some of these normative values are legally recognised, which means the law regulates conduct that violates such norms. Nevertheless, whether a matter is legally regulated should not be the only yardstick by which we judge conduct. Put differently, I am not suggesting that the type of conduct I am about to criticise is unlawful, but it is conduct that is deeply concerning from an ethical perspective, even if not unlawful. 

While we can disagree about the extent to which there ought to be the provision of public services (or which services should be public services), we can all accept that when we access particular public services we should be able to expect equality of treatment. We know of the apartheid era neglect of public services such as public transport.

Unfortunately, since 1994 there has been a political failure — not even to mention incompetence, corruption or cronyism — to seriously address these historical issues. Thus, most South Africans must rely on private providers of services. The minibus taxi industry (and now a host of e-hailing services) is but one example of this.

The ANC, as the biggest party in the government of national unity (GNU), would give itself a huge boost if it could demonstrate that the GNU could implement something on a grand scale, but with more modest, and realistic, goals than National Health Insurance (NHI), which can tangibly improve the lives of the majority of South Africans. For example, ensuring that public transport is safe, affordable, efficient and reliable. If it could manage that, we could look at its NHI ambitions with a less jaundiced view.   

It bears noting that the privatisation of what should be publicly provided is not a matter of concern only for the poorest in our society. We could just as easily include the enormous private security industry, including car guards, as a byproduct of the failure of adequate public policing. I appreciate that agreeing on what services should be public services is something that remains contested, but the point I seek to make goes beyond the particular instance of criticism.

It is also necessary to note, given my examples, that I’m not suggesting there should be a state-owned airline or the nationalisation of any sector. What makes my point even more cogent is the fact that we live in one of the most (and by some estimates, the most) unequal societies in the world, which is not something we can ignore. 

So now to my point of concern. Why do we allow a private business the privilege of crassly exploiting (or “celebrating”) the inequality in our society by creating “priority” lanes for its customers when going through airport security? I choose not to name the particular business for a couple of reasons. This is not intended to be an attack on it, as in a market economy I would assume (or hope) such business “opportunity” is given to the highest bidder rather than being the result of corruption or ineptitude, which would make my point even more pertinent. I find this form of marketing distasteful, and as a result prefer not to give further publicity to a business that engages in it.   

Lest someone raises “technical” legal arguments, for example that airports are not directly managed by the state and are themselves commercially orientated, can the same be said about “priority” lanes at the immigration counters at airports? Why is the department of home affairs discriminating between citizens based on whether they are customers a particular business (let alone if they even have the means to be a customer)? While this latter situation may be legally problematic (and I am surprised this form of discrimination has been permitted at all), as already indicated my point extends beyond what the law currently prohibits.   

To be clear, I’m not suggesting there can be no commercial advertising and corporate sponsorship at airports, or even at immigration counters. I am willing to accept such commercial activities provided that those marketing initiatives fund a better experience for everyone who must use those services. For example, a business should be allowed to proudly proclaim (through the presence of its corporate branding or by other means) that it has paid for additional personnel that serve all citizens equally.   

It also illustrates a further point. Despite all the talk about ethical business practices, corporate social responsibility or concepts like environmental, social and governance considerations, left to their own devices businesses still seem to be only concerned about their own profits and serving their own interests. All that I can hope for in the immediate future is that ours becomes a society that will make businesses realise that it is a bad form of marketing to treat some (if not the majority) of us like second-class citizens.   

• Karjiker holds the Anton Mostert Chair of Intellectual Property Law in the faculty of law at Stellenbosch University. He writes in his personal capacity.