The Stellenbosch University (SU) Law Clinic is preparing to go to court in another potentially groundbreaking case, this time representing South African Paralympic swimmer and law student Hendri Herbst.
Upon visiting the restaurant of prominent Cape winery Durbanville Hills towards the end of 2014, Herbst, who is completely blind, was allegedly refused entry because his guide dog accompanied him. According to Herbst, a Durbanville Hills employee refused to seat him and members of his family in the restaurant, allegedly because the winery's policy barred all dogs from the inside of the restaurant. In addition, Herbst alleges that he was refused use of the restaurant's toilet facilities, unless a male member of his party – and not his guide dog – escorted him. This, the Paralympic medallist believes, amounted to unfair discrimination based on his disability. The Durbanville Hills winery, in turn, alleges that the claim has lapsed.
The case, which has been filed in the Equality Court, is significant in more than one respect. Firstly, it is expected to provide clarity on the legal position when a marginalised individual's claim lapses because of a court official's failure to serve documents in time. Moreover, this will be the first time for a South African superior court to rule on whether it constitutes unfair discrimination to refuse blind persons entry to an establishment because they are accompanied by a guide dog. According to the South African Guide Dog Association, such incidents occur every day (also read the following article: https://publiceyemaritzburg.co.za/41658/woolies-welcomes-guide-dogs-apologises-incident/). Herbst's case could therefore prove valuable in setting a precedent.
Law Clinic attorney Monja Posthumus-Meyjes says that although South Africa ratified the United Nations Convention on the Rights of Persons with Disabilities and the Promotion of Equality, the country currently lacks legislation specifically aimed at protecting persons with disabilities. The White Paper on the Rights of Persons with Disabilities published in March 2016 is progressing at a snail's pace, while the law on discrimination and the protection of persons with disabilities has not developed much through case law either. Therefore, Herbst's case presents an important opportunity to give new momentum to legislative efforts aimed at protecting persons with disabilities from widespread discrimination.
According to Dr Theo Broodryk, head of the Law Clinic, they have agreed to represent Herbst because the case is closely aligned with the Clinic's vision of empowering vulnerable communities to stand their ground in legal matters. In 2016, for example, the Law Clinic won a major victory for victims of unscrupulous emolument attachment orders in the Western Cape High Court, which the Constitutional Court later confirmed. The Clinic was also previously involved in Constitutional Court litigation to protect the family rights of farmworkers' adult children.
