Equality (Section 9)

The Concept of Equality

- The formal idea of equality is that people who are similarly situated in relevant ways
should be treated similarly
- It is ALSO the idea that people who are not similarly situated should be treated
dissimilarly
- The Constitution commits the state to the goal of achieving equality – it tells us the
type of society that it wishes to create is one based on equality, dignity and freedom

Section 9

Equality

1. Everyone is equal before the law and has the right to equal protection and benefit of
the law.

o The principle of equality before the law and confers the right to equal
protection and benefit of the law

2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination
may be taken.

o Affirmative Action

3. The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.

o Prohibition of unfair discrimination on certain grounds (listed grounds)

 4. No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.

o Extends the prohibition of unfair discrimination to the horizontal level and

requires enactment of national legislation to prohibit unfair discrimination

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.

o Presumes state or private discrimination on the listed grounds to be unfair

This right comprises a guarantee that the law will protect and benefit people equally
and prohibition on unfair discrimination

- Looking at subsection (2), special measures may be taken to ensure the protection or
advancement of people who have been disadvantaged by discrimination in the past

Historical and Social Context of the right to Equality

- The apartheid political and legal system were squarely based on inequality and
discrimination
- Apartheid dealt with the problem of scarce resources by systematically promoting the
socio-economic development of the white population at the expense of the rest of
society
o As the CC pointed out, apartheid systematically discriminated against
black people in all aspects of social life
- The constitutional commitment to equality also entails recognising the shifting
patters of inequality
- The nature of inequality means that the Constitutional commitment to equality cannot
simply be understood as commitment to formal equality
o Substantial inequality can be recognised to be confronted in s9(2) of the
Constitution

Formal and Substantive Equality

Formal equality means sameness of treatment: the law must treat individuals in like
circumstances alike

- Formal equality simply requires that all persons are equal bearers of rights
- It does not take actual social and economic disparities between groups and individuals
into account
- A purely formal understanding of equality risks neglecting the deepest
commitments of the Constitution

Substantive equality requires the law to ensure equality of outcome and is prepared to
tolerate disparity of treatment to achieve this goal

- Substantive equality requires an examination of the actual social and economic

conditions of groups and individuals in order to determine whether the Constitution’s
commitment to equality is being upheld
- A substantive conception of equality is supportive of these fundamental values

A purposive approach to constitutional interpretation means that s9 must be read as

grounded on a substantive conception of equality

An additional conception of equality is envisaged by the endorsement in s9(2): “legislative

and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination

- The CC states that this provision recognises a conception of restitutionary

equality
- The idea of restitutionary equality has also been associated with a political concept
that has gained considerable currency – the concept of transformation

Interpreting Section 9
In the case of Harksen v Lane NO, the CC tabulated the stages of enquiry into a violation of
the equality clause along the following lines:

According to Harksen the Section 8(1) analysis (now 9(1)): Where section 9 is invoked to
attack a legislative provision or executive conduct on the ground that it differentiates between
people or categories of people in a manner that amounts to unequal treatment or unfair
discrimination, this first enquiry is:

a. Does the challenged law or conduct differentiate between people or categories of

people? If so, does the differentiation bear a rational connection to a legitimate
government purpose? If it does not, then there is a violation of s9(1). Even if it does
bear a rational connection, it might nevertheless amount to discrimination.

The first stage (Rationality Enquiry) concerns the right to equal treatment and equality
before the law. It tests whether the law or conduct has a rational basis: is there a rational
connection between the differentiation in question and a legitimate governmental purpose
that is designed to further or achieve?

- If no, then the impugned law or conduction violates s9(1) and it fails the first stage
- If the differentiation is shown to have a rational connection, then the second stage of
the enquiry is activated to determine whether the differentiation amounts to unfair
discrimination
- A differentiation that is rational may nevertheless be unfair discrimination
o Refer to mere differentiation

b. Does the differentiation amount to unfair discrimination? This requires a 2 stage

analysis:
1) Firstly, does the differentiation amount to discrimination?
i. If it is on a specified ground, then discrimination will have been
established.
ii. If it is not on a specified ground, then whether or not there is
discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons as human beings
or to affect them adversely in a comparably serious manner (no
presumption of unfairness)
2) Secondly, if the differentiation amounts to discrimination, does it amount to
unfair discrimination
i. If it has been found to have been on a specified ground, then
unfairness will be presumed.
 ii. If on an unspecified ground, unfairness will have to be established by
the complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the complainant and other in his or her
situation

Unspecified grounds – the test for unfairness: equal dignity irrespective of membership
to certain group (Clearly stated in the Hugo case)

- Position of complainants in society and whether they have suffered in the past
from patterns of disadvantage; whether the discrimination in the case under
consideration is on a specified ground or not
- Nature of challenged provisions and purpose sought by the provisions:
o If the purpose is not directed at impairing the complaints in the manner
indicated but is aimed at achieving a worthy and important societal goal
- Extent to which the rights of the applicant had been infringed and whether it
amounted to an impairment of her fundamental dignity

These factors, assessed objectively, will assist in giving precision and elaboration to the
constitutional test of unfairness – it is the cumulative effect of these factors that must be
examined

If at the end of this stage of the enquiry, the differentiation is found not to be unfair, then
there will be no violation of s9(3) and (4)

It is important to keep these two stages separate because there can be instances of
discrimination which do not amount to unfair discrimination and it is possible to rebut
presumption of unfairness

What the specified grounds have in common is that they have been used (or misused) in
the past to categorize, marginalise, and often oppress persons who have had or who have
been associated with these attributes or characteristics – these grounds have the potential,
when manipulated, to demean persons in their inherent humanity and dignity

The structure of the Harksen formula appears quite systematic:

- One first considers whether there has been a violation of the right to equality before
the law and then considers whether there is unfair discrimination
 - If the equal treatment right in s9(1) has been violated there will be no need to consider
whether there has also been a violation of the non-discrimination right

c. If the discrimination is found to be unfair then a determination will have to be

made as to whether the provision can be justified under the limitation clause
(justification in terms of s36)

In the National Coalition Case, the CC held that a court not inevitably perform both stage of
the enquiry – the first stage of the inquiry would be clearly unnecessary in a case in which a
court holds that discrimination is unfair and unjustifiable

- In a case where a court finds that law or conduct unjustifiably infringes s9(3) or (4),
there is no need to first consider whether the law or conduct is a violation of s9(1)

Section 9 is said to identify three ways in which a law or conduct might differentiate
between people or categories of people

- Mere differentiation: while it does treat some people differently to others, it does not
amount to discrimination
o Mere differentiation will fall foul of s9(1) unless it has a rational connection to
a legitimate government purpose
- Differentiation: amounts to unfair discrimination (prohibited by s9(3) and (4))
- Fair Discrimination: law or conduct that discriminates but which does not do so
unfairly, taking into account the impact of the discrimination on the complainant and
others in his or her situation

The BoR contains a general limitations clause – s36. It is general because the clause applies
generally to all the rights listed in the BoR – this requires a 2 stage process of analysis (refer
to the s36 analysis)

- In the case of the right to equality, it is difficult to apply the usual two stage
analysis of a right and its limitations
o This is because the s9 rights are qualified by the same of similar criteria to
those used to adjudicate the legitimacy of a limitation of rights in s36
- As required by the Harksen formula, the CC has on each occasion when it has found a
violation of the equality clause, also considered the effect of the limitation clause
 o The limitation analysis has never resulted in the impugned law being upheld

Mere Differentiation

Prinsloo v Van der Linde

“In order to govern a modern country efficiently and to harmonise the interests of all its
people for the common good, it is essential to regulate the affairs of its inhabitants
extensively – it is impossible to do so without differentiation and without classifications
which treat people differently and which impact on people differently”

The equality right does not prevent the state from making classifications and from treating
some people differently from others (legitimate differentiation v differentiation that crosses
the boarder of constitutional impermissibility and is unequal or discriminatory)

- The principle of equality does not require everyone to be treated the same, but simply
that people in the same position from a moral point of view should be treated the same
- Laws almost inevitably differentiate between persons – not every differentiation
can therefore amount to unequal treatment

Differentiation that is not unfair discrimination – CC calls it mere differentiation

- Mere differentiation that is not discriminatory need not be fair

- Its validity is tested by a more generous standard: Rationality

Rationality

Law or conduct that differentiates between groups of people will be valid as long as it does
not deny equal protection or benefit from the law, or does not amount to unequal treatment
under the law in violation of s9(1)

- A law or conduct will violate s9(1) if the differentiation does not have a
legitimate purpose and if there is no rational connection between the
differentiation and the purpose

According to the case of Prinsloo v Van der Linde the constitutional state is required to act
in a rational manner and not regulate in an arbitrary manner as this would be inconsistent
with the RoL and the fundamental premises of the constitutional state – the purpose of the
aspect of equality is to ensure that the state is bound to function in a rational manner

- In the absence of such rational relationship the differentiation would infringe on

s9(1)

The Rational Connection Test:

- The court will evaluate the reasons given by the government for a law that
differentiates to determine whether the purpose of the law is legitimate
- It will then consider whether there is a rational relation between the purpose of the
law and the differentiation imposed by the law

How was the test applied in the case of Prinsloo v Van der Linde?

The case dealt with the validity of s84 of the Forest Act

- The Act aims to prevent and control veld and forest fires by creating fire-control areas
where schemes of compulsory fire control are established
- Owners of land situated outside of the fire control areas were not obliged to institute
fire-control measures – s84 created a presumption of negligence by the landowner in
respect of these fires occurring in non-controlled areas
o No such presumption applied in controlled areas

The Act differentiated between owners of land in fire controlled areas and non-fire
controlled areas

- Not a differentiation on any listed grounds

- It was not a differentiation on a ground based on attributes and characteristics with the
potential to impair the fundamental human dignity of a person or to affect them
adversely in a comparable serious manner
- This meant that the differentiation did not amount to unfair discrimination – it
was mere differentiation

According to the CC the differentiation between landowners in controlled and non-

controlled areas was rationally connected to the legitimate government purpose of
preventing veld fires
JOOSTE v SCORE SUPERMARKET TRADING

- In this case the Constitutional Court was asked to confirm a decision declared a
provision of the Compensation for Occupational Injuries and Diseases Act (the Act)
unconstitutional.
- The provision prevents employees from claiming damages from their employers,
except where provided for in the Act.
- The Constitutional Court said that it was clear that the challenged provision
differentiated between employees and non-employees
- The only issue was whether the challenged provision was rationally connected to a
legitimate government purpose.
- The Constitutional Court found that the legitimate purpose of the Act is to provide a
system of compensation for employees for disability or death caused by injuries or
diseases in the workplace.
- It allows the employee to claim limited compensation from a fund (to which
employers are obliged to contribute) even where the employer was not negligent.
- Therefore, viewed in the context of the Act as a whole, the challenged provision
depriving employees of their common law right to damages from their employer was
not arbitrary or irrational.
- The Act was rationally connected to the legitimate purpose of the Act.

Discrimination

Discrimination is a particular form of differentiation

- Discrimination is differentiation on illegitimate grounds

- List of illegitimate grounds of differentiation (listed grounds) and differentiation on
grounds similar to those listed (analogous grounds) will also constitute discrimination
o Analogous ground: one that is based on attributes or characteristics which
have the potential to impair the fundamental dignity of persons as human
beings, or to affect them seriously in a comparably serious manner

The equality clause does not prohibit discrimination, it prohibits UNFAIR

DISCRIMINATION – therefore NOT all discrimination is unfair
 - Fairness is a moral concept that distinguishes legitimate from illegitimate
discrimination

What makes discrimination unfair? – the determining factor is the impact of the
discrimination on its victims (UNFAIR discrimination: treating people differently in a
way which impairs their fundamental dignity as human beings, who are inherently
equal in dignity)

THE CONCEPT OF DIGNITY IS THUS CENTRAL TO THE UNDERSTANDING

OF UNFAIR DISCRIMINATION

- It occurs when law or conduct, for no good reason, treats some people as inferior or
incapable or less deserving of respect than others
- It also occurs when law or conduct perpetuates or does nothing to remedy existing
disadvantaged and marginalisation

Unfair Impact

Unfair discrimination is differentiation that has an unfair impact on its victims

- Constitution allows discrimination, but not unfair discrimination

o Term discrimination has a negative connotation, but in SA the textual qualifier
= 'unfair'
o Court requires us to qualify something with a negative connotation with a
further negative connotation of unfairness
- Fairness: Moral concept that distinguishes legitimate from illegitimate discrimination

The following factors must be taken into account in determining whether discrimination has
an unfair impact:

- The position of the complainants in society and whether they have been victims of
past patterns of discrimination
- The nature of the discriminating law or action and the purpose sought to be achieved
by it
- The extent to which the rights of the complainant have been impaired and whether
there has been an impairment of his or her fundamental dignity
To determine whether unfair

- Refers to the impact of the discrimination on the persons fundamental dignity, who
claims discrimination
- Whether the differentiation impairs the inherent equal dignity of the person
concerned and regards them as a second class citizen is determined by considering:
o Listed grounds s 9(3)+(4)
o If not on listed grounds (analogous grounds) then use Harksen test

Grounds – s9(3)
Differentiation on the basis of one of the grounds listed in s9(3) is presumed to be unfair
discrimination until the contrary is proved

- A claim may be brought forward on one or more of these listed grounds

Race, Colour, Ethnic Origin

- International Convention on the Elimination of All Forms of Racial Discrimination

defines ‘racial discrimination’ as unfair differentiation based on race, colour, descent,
or national or ethnic origin
- South Africa’s long history of official racism explains the inflexibility of racial
inequality in modern SA and the necessity for positive measures to remove it
o Most of the apartheid catalogue of racially discriminatory legislation has been
repealed
- Moseneke v Master of the High Court
o Two different legislations regulating intestate deceased estates of black and
white people. Evidence of extreme racial views of Apartheid. Declared
unconstitutional
 o The section of the Black Administration Act and the regulation both impose
differentiation on the grounds of race, ethnic origin and colour, and as such
constitute unfair discrimination in breach of the Bill of Rights.

Gender, Sex and Pregnancy

- Sex: refers to the biological and physical differences between men and women
- Gender: refers to the ascribed social and cultural male and female roles

Sexual Orientation

- The SA constitution is very progressive with this aspect

- A number of common law and old-order legislative criminal prohibitions of
homosexual acts, premised on moral disapproval were in obvious conflict with a
right against sexual orientation discrimination

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs

- The provisions of the Aliens Control Act were found to constitute unfair
discrimination on grounds of sexual orientation and marital status
- The provisions granted spouses of South African citizens a right to an immigration
permit
- By granting a benefit to married people that was not granted to people who were not
married or to those who could not marry (same-sex life partners), the Act
differentiated between groups of people
o This differentiation overlapped and intersected on two of the listed
grounds – sexual orientation and marital status
- By excluding gay and lesbian couples from the benefit, the legislation was in effect
saying that homosexual partnerships did not constitute family life
o This perpetuated lots of harmful and hurtful stereotypes

- The court stated that the message that is given is that gays and lesbians lack the
inherent humanity to have their families and family lives in such same sex
relationships respected or promoted
o This impact constitutes a crass, blunt and serious invasion of their dignity

- Discrimination was considered unfair

To provide a benefit to married persons only is unfair discrimination on grounds of sexual
orientation since the background common law confines the status of marriage to heterosexual
relationships

- Challenge to the common law definition of marriage as a union of a man and a

women was heard and challenged by the SCA in Fourie v Minister of Home Affairs
o The hallmark of an open and democratic society is its capacity to
accommodate and manage difference of intensely-held world views and
lifestyles in a reasonable and fair manner
- The Civil Unions Act was passed by Parliament – benefits of a civil union or marriage
under the Act are exactly the same as a marriage in terms of the Marriage Act

Marital Status

The ground of marital status of discrimination gives motivation to reforms aimed at removing
the historical privileging of common law marriage over other forms

Robinson v Volks

- Female partner of deceased male challenged the Maintenance of Surviving Spouses

Act for discriminating on the basis of marital status
o Failed to cater for the surviving partner of a permanent heterosexual life
partnership, making it an unfair ‘privileging’ of marriage
- They never married but lived together for years. She supported him though
everything, but his will left most of his assets to his children. She wanted to claim
assets as a ‘life partner’
- Court said there were no barriers preventing her from marrying (unlike same-sex
couples). She tried to use the fact that the deceased did not want to marry her as a
‘barrier’.
- Case was dismissed.

Age

Age is different from most of the other grounds of discrimination in that it does not refer to
an unchanging characteristic
 - Age changes constantly throughout the course of everyones life
- It regulates many things: voting; pension; inheritance etc
- Most common challenge is the compulsory early retirement

Disability

Interpreting the provisions of s9(3) against the backdrop of SA’s international obligations, the
court held that the government had the duty to advance and promote the position of disabled
people

- Depending on the nature of the disability, special measures may have to be taken to
ensure that the needs of the disabled people are not merely taken into account, but the
barriers to their effective economic participation are removed
- Must be understood in both a negative and positive terms

Religion, conscience and belief, culture and language

Birth and Social Origin

Analogous Grounds
Analogous grounds will have a similar relationship and impact as of those listed in the
listed grounds

- There is no presumption to aid the applicant – the applicant must show that law or
conduct on grounds other than those listed in s9(3) is based on attributes or
characteristics which have the potential to impair the fundamental dignity of persons
as humans, or to affect them seriously in a comparably serious manner
- Factors that will have to be considered:
o The position of the complainants in society and whether they have been
victims of past patterns of discrimination
o The nature of the discriminating law or action and the purpose sought to be
achieved by it
o The extent to which the rights of the complainant have been impaired and
whether there has been an impairment of his or her fundamental dignity
Hoffman v South African Airways

- The case dealt with the airlines policy of not employing HIV positive persons as cabin
attendants
- It was argued that the policy amounted to unfair discrimination on the listed grounds
of disability – the CC avoided HIV as a disability, dealt with it as an analogous
ground
- The determining factor in deciding whether discrimination is unfair is its impact on
the people affected
- For people to be denied employment because of their HIV positive status without
regard to their ability to perform the duties of the position from which they have been
excluded is a violation of dignity
- Legitimate commercial requirements are important but they cannot serve to disguise
stereotyping and prejudice, which have no place in this era of respect for human
dignity, compassion and understanding - ubuntu.

Direct and Indirect Discrimination

Indirect Discrimination

The prohibition of indirect unfair discrimination is based on the realisation that, though the
basis of differentiation may, on the face of it, be innocent, the impact or effect of the
differentiation is discriminatory

- However, when analysing the impact or effect of the provision/conduct, the

differentiation is discriminatory
- You consider the impact of the discrimination only, not the intention

Griggs v Duke Power Co

- Black employees successfully challenged the hiring and promotion requirements of

the company that required a high school diploma
 - On the face of it, it is not discriminatory, but had the effect of indirectly keeping black
people out of the job, as a disproportional amount could not meet this requirement

Direct Discrimination

On the face of it, the provision is discriminatory – indirect discrimination will often need
evidence to show that the particular law or conduct has a discriminatory effect

- The provision arbitrarily discriminates against the person – it is evident at a glance

Unfair discrimination needs not be intentional for it to be struck down

- There is no need for the applicant to show that a law or conduct which has
discriminatory effect was intended to discriminate
- The applicants only have to show that they were unfairly discriminated against but not
that the unfair discrimination was intentional

Affirmative Action (AA)

As soon as the defence of AA has been raised, you do not turn to the Harksen test of equality,
you turn to the Van Heerden test for AA – you turn to a s9(2) analysis before you turn to a
s9(3) analysis if it is at all necessary

The proper reach of the equality right must be determined by reference to our history and
the underlying values of the Constitution.

- This substantive notion of equality recognises that besides uneven race, class and
gender attributes of our society, there are other levels and forms of social
differentiation and systematic under-privilege, which still persist.
- Restitutionary measures, sometimes referred to as “affirmative action”, may be
taken to promote the achievement of equality
 - The provisions of section 9(1) and section 9(2) are complementary; both contribute to
the constitutional goal of achieving equality to ensure “full and equal enjoyment of all
rights”.
-

If the test is rational and meets the s9(2) standard you do not have to go to the s9(3) standard,
if it does not meet the s9(2) standard, then it will go to the s9(3) test

When a measure is challenged as violating the equality provision, its defender may meet
the claim by showing that the measure is contemplated by section 9(2) in that it promotes
the achievement of equality and is designed to protect and advance persons disadvantaged
by unfair discrimination.

How does one determine whether a measure meets the requirements of s9(2)

- Does the measure target persons of categories of persons who have been
disadvantaged by unfair discrimination?
o Does this aim to transfer a particular work force? – is the target a group of
people who have suffered in the past?
o The beneficiaries must be shown to be disadvantaged by unfair discrimination.

- Is the measure designed to protect or advance such persons or categories of persons

o The measure must be reasonably capable of attaining the desired outcome
o One cannot with clarity predict the future
o A reasonable likelihood of meeting the end that was included in the design of
the programme
o In essence, the remedial measures are directed at an envisaged future
outcome. The future is hard to predict. However, they must be reasonably
capable of attaining the desired outcome.
o No requirement of proving a causal link or the necessity approach

- Does the measure promote the achievement of equality?

o This requires a consideration of the effect of the measure in the broader
society
o If you aim to achieve equality, there will be a price to pay for those who were
previously advantaged in the past
 o It is also clear that the long-term goal of our society is a non-racial, nonsexist
society in which each person will be recognised and treated as a human being
of equal worth and dignity.

An AA measure must not constitute an abuse of power or impose substantial or undue

harm from those that are excluded from its benefit so as to threaten the long term
constitutional goal of a non-racial and non-sexist society

- An AA plan that places an absolute bar on certain previously privileged people will
not pass the constitutional muster

When someone mentions that there is an AA plan in place, know that it is linked to the
Employment Equity Act that was enacted to give effect to s9(2)

- Know what standard that program was meet to pass constitutional scrutiny
- Do not engage in unfair discrimination analysis… there is no obligation on the
employed to rebut the presumption of unfairness

 Means preferential treatment for disadvantaged groups of people and is legally

protected and implied by s 9(2)

o Typically AA programme will require members of a disadvantaged group to

be preferred for the distribution of some benefit over someone who is not part
of that group. (usually based on race or gender)

- Seen as either ‘reverse discrimination’ or ‘part of the right to equality’.

o Reverse racism – AA as favouring those disadvantaged by the past to those
who benefited in the past
o Part of the right to equality – sees AA as the means to an end of a more equal
society
 This view treats equality as a long-term goal, achieved through
measures and programmes reducing current inequality
 This is the view favoured by the constitution
- AA is not an exception to equality, but is a means of achieving substantive equality
- Laid out in s 9(2)
o ‘equality includes the full and equal enjoyment of all rights and freedoms
 o ‘to promote the achievement of equality’ affirmative actions must be taken

- Aims at readdressing the inequalities of the past

- Apartheid left a legacy of inequality which prevents the equal enjoyment of rights
o A person who is illiterate, uneducated or undereducated, cannot enjoy the
rights to FoE or political rights in the same way that an educated person is.
- Therefore s9 does not simply require the state to prohibit discrimination, it implies
positive action to ensure everyone can equally enjoy all rights and freedoms
- AA therefore allows for the differentiation aimed at protecting or advancing persons
disadvantaged by unfair discrimination
o Provided that these measures conform with the internal test of s s9(2)
o Ie) if an AA measure is challenged as violating the right to equality, the state
or institution responsible for that measure can defend it on the following
grounds:

1. Targets persons or categories of persons who have been disadvantaged

by unfair discrimination

2. The measure is designed to protect and advance such persons or

categories of persons

3. Promotes the achievement of equality

- Once shown that this measure amounts to affirmative action, it is not unfairly
discriminatory, even if the basis of differentiation is on a listed ground

Affirmative action is justified by its outcomes.

- A measure that favours a relatively disadvantaged group, at the expense of a group

that is relatively well off, it is not unfairly discriminatory
o The consequences of such a measure are, in the long run, is a more equal
society
- While it is not possible to know the future, these measures will be justified if their
outcome is more likely to achieve equality than not.

There were two trains of thought regarding the meaning of ‘designed to achieve’ equality ito
section 8 of interim constitution (now s9)
 - One interpretation was that there must be a rational relationship between the means
and the ends. Ie – the means of a programme must be capable of meeting the purpose
for which they were implemented
o Public Servants Association v Minister of Justice
o Court found the words ‘design’ and ‘achieve’ denote a causal connection
between designed measures and their objectives
- This was overruled by the CC in van Heerden – text of s 9(2) requires only that the
means should be designed to protect or advance.
o If the means carry a reasonable likelihood of meeting the ends this is sufficient
o To require a sponsor or remedial measure to establish a precise prediction of
the future outcome, is to set a standard not required by s9(2)

Therefore a litigant does not need to show that it is necessary to disfavour one class in order
to uplift another

- Only when based on AA – ie) the measures must be constructed to protect or advance
a disadvantaged group.
- Therefore it unnecessary to determine that there is no less onerous way in which the
remedial objective may be achieved

Mota v University of natal

- An affirmative Action programme was instituted by the University, who had decided
to limit the number of Indian students accepted to 40.
- This was because the poor number of standards of education available to African
students meant that the merit-based entrance programme would result in very few
African applicants being accepted into the medical school
- An Indian student who obtained 5 distinctions in matric was refused entry because of
this, and so challenged the programme on the grounds of unfair discrimination
- Argued that Indian community had also been disadvantaged by apartheid, and a
measure favouring one disadvantaged group over another mounted to unfair
discrimination

Court held
 - The admission policy was a measure designed to achieve adequate protection and
advancement of a group disadvantaged by unfair discrimination
o There is no doubt that Indian people were disadvantaged by Apartheid, but not
to the extent Africans were.
o African people were subject to the lowest of the ‘four tier’ system of
education, which disadvantaged them significantly more than their Indian
counterparts
o Therefore it is perfectly legitimate to apply affirmative action in proportion to
the degree of disadvantage suffered in the past
- When a programme is to disadvantage on the basis of race, the court must focus on
step 2 of the AA clause to ensure it is rationally constructed to achieve equality

The case was dismissed

SA Police Service v Solidarity obo Barnard

- Focuses on second aspect of AA clause

- A police woman was denied promotion on the basis that it would result in the
overrepresentation of white people at a senior management position in the police force
o The positions was therefore left vacant

- Court held that overrepresentation of white employees at senior levels ‘required

corrective intervention as decreed in the constitution’. S 9(2) – therefore not unfair
o In this case the court interrogated the programme, concluding that it was no
unfair and qualified as AA

Promotion of Equality and Prevention

of Unfair Discrimination Act
 Draws its power from s 9(4):
 o Requires the enactment of legislation to prohibit or prevent unfair
discrimination, particularly ‘private discrimination’ – practiced by individual
or organisations other than the state, in the form of conduct rather than law
o If an Act is being challenged as discriminatory you rely Directly on the right
to equality – s 9(4)
o If you are discriminated against you can bring your complaint to the equality
court, but you will rest you complaint on the Act, not the constitution
 The Act is extremely ambitious
o Aiming for the total eradication of social, economic and political inequalities –
especially those generated by Apartheid, which brought the pain, suffering and
inequality to the majority of people in SA
o 3 aims
a. Prohibiting unfair discrimination by state and other persons
b. Providing remedies for victims of unfair discrimination
c. Promoting the achievement of substantive equality

a) Prevention of unfair discrimination

 The act has horizontal application in that it binds the state and all persons
o Does not apply to discrimination in the workplace to the extent that is covered
by the Employment Equity Act
o Previously litigation ito equality relied on s 9 itself – since its enactment all
litigation should take place ito the Act, unless challenging the Act itself.
 Challenges based ito the Act give significant procedural advantages to complainant
o If state/private conduct is challenged – the burden of proof will shift to the
respondent, so long as the complainant provides reasonable evidence of
discrimination. In other words the complainant must show evidence of such
character that, if left unanswered by respondent, would cause a reasonable
person to rule in their favour
 The onus will shift to respondent – they cannot simply rebut the
evidence and argument brought against them. They must supply
sufficient evidence to persuade the court that the discrimination did not
take place, or that the or that the differentiation did not take place on a
listed ground (therefore no presumption)
 o Second advantage – presumption of unfairness ito the Act goes further than s 9
in that it is extended to include analogous grounds. However, before the
reverse of onus is triggered it must be shown that the discrimination causes a
disadvantage, undermines human dignity or adversely effects equal enjoyment
of Rights in a manner comparable to listed grounds.
 The complainant will have to go some way in establishing unfairness
in order to show discrimination on analogous grounds
 In principle the Act differs from s 9 in that the respondent always
bears the burden as far as the question of unfairness is concerned
o Third advantage – Listed grounds assist the complainant in their challenge.
 The listed grounds prevent anyone arguing that these aspects may not
amount to discrimination. Eg) cannot argue that ‘systems preventing
females from inheriting’ are not unfairly discriminatory.
o Fourth advantage – Hate speech, harassment and dissemination of information
that discriminates are specifically outlawed, and do not fall under the general
prohibition of discrimination like gender, race etc, do. The prohibition of hate
speech is ito s 10 of the Act is much wider than the categories of expression,
and is regulated by s36.
o However, some argue that s 10 is overbroad: (past Exam Question)
 S10 of Equality Act – Qwelane
 Challenged that, ito this Act, the line between hurtful and offensive speech, and hate
speech is blurry
o News ambassador to Uganda expressing homophobia in no uncertain terms –
taken to equality court in joburg
o what he published amounted to hate speech – he is now challenging
constitutionality of s10
 Argued that ito the Act, any statement that hurts the feelings of another
is considered Hate Speech – this is overbroad
 Offensive speech is not hate speech – constitution draws that line
o Always look at CONTEXT
 If based on race, gender, ethnicity, religion - Constitution will not
protect it
 But the Act goes far beyond this, and is unduly limits FoE
  Kruger thinks this is a fair reason for challenge

b) Access to justice
 Second objective of the Act is to provide access to justice and effective remedies for
victims of unfair discrimination, hate speech and harassment.
o All complaints ito the Act are hear by equality courts (all HC and designated
MC’s)
o These courts receive training and are specially qualified to hear disputes
regarding Equality.
o Once a matter is brought to the court, they may refer matter to what they
perceive to be the most appropriate institution to hear it
 Wide ranging powers of enforcement are awarded to equality courts
o Including power to grant interdicts, award damages, order unconditional
apologies, ordering the respondent to make frequent reports to the court
regarding the implementation of the court’s order, etc.
o Gives rise to Civil cases – therefore remedy is payment, preventing further
action ect
o These courts do not regulate criminal matters but if, for example, the court
determine that the harassment amounts to indecent assault, they can refer the
case to the Director of Public Prosecution

c) Promotion of Equality
 Not yet in operation
 Concerned with Chapter 5 of the Act
o Sets out lists of positive duties placed on the state to develop substantive
equality and address unfair discrimination.
o Similar lists placed on private persons who directly or indirectly contract with
the state, or who exercise a public power

Harksen v Lane
- Mrs Harksen challenged the constitutional validity of certain provisions of the
Insolvency Act7 which caused her property (as that of the solvent spouse) to vest in
the Master of the High Court and later in the trustee of the insolvent estate upon the
declaration of her husband’s insolvency.
- The Insolvency Act allows for the property of the solvent spouse to be released to her
only if she provides proof of a valid legal title to the property. If the solvent spouse
fails to do so, the property will be considered part of the insolvent estate to the benefit
of the creditors of the insolvent estate.
- Mrs Harksen’s argument was that the Act placed severe and unfair burdens on the
solvent spouse when one compared her position to that of others in intimate
relationships with the insolvent.
- The Act, according to her, discriminated unfairly against spouses on the basis of their
marital status.
- The court disagreed and held that the Act serves to protect the interests of the
creditors
-