Equality

Study
• Smith, A Equality constitutional adjudication
in South Africa (2014) 14 African Human
Rights Law Journal Sabinet / V-Drive
• President of RSA v Hugo 1997 (4) SA 1 (CC)
• Union of Refugee Women v Director: Private
Security Industry Regulatory Authority 2007
(4) SA 395 (CC)
• See BlackBoard for required reading as and
when added
 Equality
• Everybody is equal before the law and has the
right to equal protection and benefit of the law.
• Neither the state nor any person may unfairly
discriminate directly or indirectly against anyone.
• It is only unfair discrimination which is
prohibited. Therefore, a “working formula” has
been created to establish whether unfair
discrimination has taken place.
 Equality
• The first step in this process is to determine whether
there is a differentiation between persons.
• Thereafter, it must be established whether this
differentiation bears a rational connection to a
legitimate governmental objective?
• If it is proven that there exists a rational connection to
a legitimate governmental objective, there is no
violation of section 9(1).
• Thereafter, if it has been found that there is no
violation of section 9(1), the applicant can proceed to
determine whether the challenged law or conduct
amounts to a violation of section 9(3) which contains
the list of 17 listed grounds of discrimination.
 Equality
• Discrimination refers to instances where a person
is denied a benefit or has a burden imposed on
them on a ground that adversely affects their
human dignity.
• The listed grounds, include race, gender, sex,
pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, and birth.
• If the differentiation is on a listed ground, then
discrimination is deemed to be established. It
must be borne in mind that the list of grounds is
not exhaustive.
 Equality
• If there is differentiation on a ground that is not
specified, then in that event, discrimination will be
deemed to be established, if the applicant proves that
the ground is based on attributes and characteristics
which have the potential to impair the fundamental
dignity of persons as human beings or to effect them in
a comparably serious manner.
• These are referred to as analogous grounds.
• As far as section 9(2) is concerned, if the law or
conduct falls within the provisions of section 9(2), it is
very unlikely to be simultaneously unfair
discrimination, especially where it is proven that there
is compliance with a legitimate governmental
objective.
• Unfair discrimination is the primary issue.
 Equality
• If there is discrimination on a specified ground then
unfairness is presumed, unless it is established that the
discrimination is fair.
• It if is on an analogous ground, then the applicant will
have to prove unfairness.
• In the Hugo case, the court set out three guidelines
which assist in determining whether the discrimination
is unfair.
 The first is a consideration of the position of the
complainant and whether they have been the victim
of past patterns of discrimination. Differential
treatment that burdens people in a disadvantaged
position is more likely to be unfair than burdens
placed on those who are relatively well-off.
 Equality
 The second guideline concerns the nature and purpose
of the discriminatory law or practice and particularly
whether it is aimed at achieving a worthy and
important societal goal; and the third guideline is an
assessment of 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.
 After satisfactorily evaluating the steps and factors to
determine whether discrimination has taken place and
whether it amounts to unfair discrimination, then a
determination would have to be made as to whether it
is reasonable and justifiable in an open and democratic
society (this is also referred to as the process of
justification under the limitation clause).
 Equality
• The Promotion of Equality and Prevention of Unfair
Discrimination Act is the national legislation
contemplated in section 9(4) of the Constitution.
• It gives greater content to the constitutional
prohibition against unfair discrimination and a litigant
cannot attempt to circumvent such legislation by
attempting to rely directly on the constitutional right.
• This Act regulates the relationship between the state
and individuals and between individuals themselves in
so far as unfair discrimination is concerned, because
the Act prohibits unfair discrimination on a prohibited
ground in the same manner as the Constitution does.
• Of significance in terms of the application of this Act, is
that the onus of proof is reversed in some
circumstances.
 Equality
• In terms of section 13, once the applicant
adduces evidence of discrimination on one of the
prohibited grounds, the onus shifts to the
respondent to prove that the discrimination was
not unfair.
• The applicant must provide credible evidence
that the denial of the benefit or the burden
imposed on him or her was based on one of the
prohibited grounds.
• If the applicant discharges this burden then the
respondent is required to justify the decision by
proving that it was fair.
 Differentiation - Section 9(1)
The Equality Enquiry
Harksen v Lane NO 1998 (1) SA 300 (CC)
The questions to be answered are as follows:
• Does the provision differentiate between people or categories of
people?
• Does the differentiation bear a rational connection to a legitimate
government purpose? No connection then there is a violation. Even
with a rational connection, it may have a discriminatory effect.
• Does the discrimination amount to unfair discrimination:
– Does the differentiation amount to discrimination?
– If so, then fairness is presumed if it is on a specified ground.
• If the discrimination is, found to be unfair then the provision must
be interpreted against the limitations clause.
Section 9(1) as a Minimum Rationality
Requirement
• The starting point of the court’s interpretation of
section 9(1) is the idea that differentiation lies at the
heart of equality jurisprudence and that the task of the
court is to determine when that differentiation is
permissible and when it infringes the equality right.
• Differentiation may involve discrimination, fair or
unfair (in which latter case it would fall foul of section
9(3) or (4)), or it may amount to “mere
differentiation”.
• “Mere differentiation” in legislation and administration
is common practice in any modern state that seeks to
govern effectively and regulate the needs and interests
of its citizens.
Section 9(1) as a Minimum Rationality
Requirement
• Examples of such differentiation range from income classification for
the purposes of taxation or social welfare grants to the distinctions
made in regulations for the distribution of various types of drugs.
• The majority of these distinctions do not contravene the equality
right. However, differentiation in this context will not always be
constitutional. In particular, it will fall foul of the Constitution when it is
arbitrary or irrational.
• Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC):
[T]he constitutional state is expected to act in a rational manner. It
should not regulate in an arbitrary manner or manifest naked
preferences that serve no legitimate governmental purpose, for that
would be inconsistent with the rule of law and the fundamental
premises of the constitutional state. The purpose of this aspect of
equality is, therefore, to ensure that the state is bound to function in a
rational manner. This has been said to promote the need for
governmental action to relate to a defensible vision of the public good,
as well as to enhance the coherence and integrity of legislation.
 The Rationality Test
• The state is bound to function in a rational manner.
• The state may not regulate in an arbitrary manner that
serve no legitimate government purpose.
• This is inconsistent with the Rule of Law and the
premises of the constitutional state.
• This test envisages two questions described below:
 Has there been a differentiation between individuals
or groups?
• The establishment of a differentiation between
individuals or groups is the first step of the section 9(1)
enquiry. If there is no differentiation, there can be no
violation of section 9(1).
 The Rationality Test
• The question of whether there is a
differentiation has usually not been contested.
• However, in Jordan and Others v The State and
Others one of the issues in dispute was whether
the provision that criminalized sex work
differentiated between sex worker and client.
• The minority judgment of O’Regan and Sachs JJ
addressed the criteria for the proper
interpretation of the provision.
• Their starting point was to “consider whether
there is a constitutionally compatible
interpretation of the section” that the provision
is “reasonably capable of bearing”.
 The Rationality Test
• In doing this the judges looked to what had been
generally accepted in our law; the natural reading
of the section; and the context of the enactment
of the provision.
• In finding that the provision did differentiate
between sex worker and client, the judges also
sought to avoid a broadening of the definition of
the crime, a task that ordinarily fell to the
legislature and not the court.
• The judges concluded that it would be contrary to
constitutional values, including the principle of
legality, to accept the extended definition.
 The Rationality Test
Does the differentiation bear a rational connection to a legitimate
government purpose?
• This entails two steps: firstly, to identify a legitimate purpose,
and secondly, to find a rational connection between the
differentiation and this purpose.
• The impugned action must have a legitimate purpose. Here, the
court will evaluate the reasons given by the government to
determine whether there is such a legitimate purpose.
• To meet the criterion of legitimacy under section 9(1), it seems
that the government merely has to show that its purpose is
neither arbitrary nor irrational.
• Legitimacy is, thus, equated with rationality. The government
does not have to justify its purpose against substantive
constitutional values or any conception of ‘the general good’ as
it might under the justification enquiry contemplated in section
36.
 The Rationality Test
• The next step considers whether the scheme or
measures chosen by Parliament or the
government is rationally connected to this
purpose.
• The question is not whether the government may
have achieved its purposes more effectively in a
different manner, or whether its regulation or
conduct could have been more closely connected
to its purpose.
• The test is simply whether there is a reason for
the differentiation that is rationally connected to
a legitimate government purpose.
 Discrimination – Section 9(3) to (5)
• Section 9(3) and (4) of the 1996 Constitution provide
protection against unfair discrimination.
• This has become the central operating concept of the
right and the main vehicle for protecting and
promoting substantive equality within the
determination of fairness.
• The wording of the prohibition is not materially
different between the two constitutional texts, except
that section 9 includes three additional grounds –
namely pregnancy, marital status and birth – and a
specific protection against unfair discrimination in the
private sphere, in section 9(4).
• Section 9(5) provides for a presumption in favour of
those claiming unfair discrimination on a listed ground.
 Harksen v Lane NO 1998 (1) SA 300 (CC)
• Even where a differentiation bears a rational connection to
a legitimate government purpose, it may still amount to
unfair discrimination.
• The protection against unfair discrimination in section 9(3)
and (4) has seen the development of a substantial
jurisprudence on equality.
• This jurisprudence has drawn on some of the most
advanced comparative and international thinking on
equality to embrace the legal mechanisms of substantive
equality, namely a concern with impact and context, and
the development of principles (informed by constitutional
values) to guide the appropriate application of the right.
• Much of the substantive enquiry has been located in the
determination of ‘fairness’, leaving the test of
discrimination with a relatively low threshold of
compliance.
 Section 9(4) – The Protection against Unfair
Discrimination in the Private Sphere
• Section 9(4) makes it clear that the constitutional right to be free
from unfair discrimination is applicable against private persons.
• In other words, the constitutional equality right may be invoked
against landlords, employers, banks and insurance companies to
address unfair discrimination.
• However, there has been little development of the meaning of
unfair discrimination in relation to private behaviour.
• The fact that the justification provision, section 36, will not apply
in respect of private conduct suggests that “unfair
discrimination” will be interpreted and applied differently under
section 9(4).
• In this respect, it is likely that fairness will not only focus on the
impact of impugned conduct on the complainant, but will
involve a balancing exercise between questions related to the
effect of the discrimination and justifications by the respondent.
 Section 9(4) – The Protection against Unfair
Discrimination in the Private Sphere

• Some precedent for this approach to fairness

is apparent in President of the Republic of
South Africa and Another v Hugo and
Hoffmann v South African Airways.
• In both instances, the inclusion of a wider
range of issues in the determination of
fairness has not been achieved at the expense
of the constitutional values that underpin the
right.
 Section 9(4) – The Protection against Unfair
Discrimination in the Private Sphere
• The enactment of the Promotion of Equality and
Prevention of Unfair Discrimination Act means that
claims of unfair discrimination are more likely to take
place under this Act than they are under the
Constitution.
• The Employment Equity Act already regulates unfair
discrimination in the workplace.
• The detail given to definitions of concepts and
procedures, the greater accessibility of institutions for
settling claims and the range of remedies available
under these Acts make them more suitable to the
sphere of private discrimination and to discriminatory
conduct (rather than laws) in the public sphere.
 Specified grounds
Race-Based (Race, Colour, Ethnic Origin)
• This is based on biological and sometimes
social categories.
Moseneke v The Master 2001 (2) SA 18 (CC)
• Provisions of the Black Administrations Act 38
of 1927 challenged
 Specified grounds
Sex and Gender (Pregnancy)
Gumede v President of the RSA 2009 (3) BCLR 243 (CC)
• Differentiation between married men and women is
based on sex.
• Differentiation between husband and wife is based on
gender.
• Sex: Biological term (physical and biological differences
between men and women)
• Gender: Social term (Ascribed social and cultural male
and female roles)
 Specified grounds
Sexual Orientation
• Provisions that discriminate between sexual
acts between people of the same sex and the
same acts between people of the opposite
sex.
• Bisexual, transsexual and/or other orientation.
 Specified grounds
Religion and Culture
MEC for Education: KZN v Pillay 2008 (2) BCLR 99
(CC)
• Religion: Ordinarily concerned with personal
faith and belief
• Culture: Generally relates to traditions and
beliefs developed by a community.
• These two concepts may overlap as they do
not develop in a vacuum.
 Specified grounds
Birth
Bhe v Magistrate, Khayelitsha 2005 (1) BCLR 1 (CC)
• Unfair discrimination on the ground of birth.
• Children’s biological parents not married when
child conceived or born.

• See also Marital Status, Age, Disability, Birth and

Social Origin
 Unspecified or Analogous Grounds
Unspecified ground:
• Depends “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.
 Dignity
• ‘Equality of what?’ - Constitutional Court has emphasised
the relationship between equality and the value of
dignity.
• The importance of this value to the equality right, and,
more particularly, to the right to be free of unfair
discrimination, was established in President of the
Republic of South Africa and Another v Hugo 1997 (6)
BCLR 708 (CC):
At the heart of the prohibition of unfair discrimination
lies a recognition that the purpose of our new
constitutional and democratic order is the establishment
of a society in which all human beings will be accorded
equal dignity and respect regardless of their membership
of particular groups. The achievement of such a society
in the context of our deeply inegalitarian past will not be
easy, but that that is the goal of the Constitution should
not be forgotten or overlooked.
 Values, Purpose and the Parameters
of the Equality Right
• The purpose of the equality right looks to a society
where each person is accorded equal moral worth, and
• in which systemic inequality and disadvantage are
eradicated and substantive equality is actively
promoted.
• The value of dignity continues to play the central role
in relation to unfair discrimination; however, its
meaning has sometimes widened to include issues of
group disadvantage and material well-being.
• The value of equality is more dominant in the court’s
interpretation of the positive aspects of the right under
section 9(2).
 The Potential And Limits Of An Equal
Rights Paradigm In Addressing Poverty
• What role the right to equality can and should play in relation to poverty.
• Unlike socio-economic rights, which are still fighting for full recognition within
the human rights arena, the right to equality is well established and could
therefore be a primary vehicle for establishing a human rights approach to
poverty.
• This requires a deeper understanding of the relationship between poverty and
the traditional constituency of equality rights, namely inequality on the
grounds of race, gender or other status.
• Examines the relationships between poverty and inequality first from the
perspective of distributive inequality and then from that of status inequality.
• While the relationship between poverty and distributive inequality remains
contested, deepening understandings of substantive equality have illuminated
the continuities between status inequalities and poverty.
• Develops an analytic framework within which both poverty and status
inequality might be located.
 The Potential And Limits Of An Equal
Rights Paradigm In Addressing Poverty
• Considers three possible ways in which a right to equality
could function in relation to poverty, including:
 poverty as a ground of discrimination;
 using equality to challenge under-inclusive or
discriminatory anti-poverty measures; and
 “fourth generation” models of equality, which include
positive duties.
• Viewing poverty through the lens of substantive equality
allows us to illuminate the ways in which poverty, like
status discrimination, generates stigma, social exclusion
and loss of autonomy.
• The right to equality potentially makes a valuable
contribution to aspects of poverty based on mis-
recognition and social and political exclusion.