HUMAN RIGHTS

(HRE0021/HRT41B0)

University of Johannesburg

Mr Marno Swart September 2024

Crash Course: The right to equality and against unfair discrimination

(section 9)

1. Introduction
The notion of equality is entrenched as both a right (section 9) and a value (section 1(a)) in the
Constitution of the Republic of South Africa, 1996 (hereafter, ‘the Constitution’). As a once
severely segregated society, this right is of cardinal importance in our society today.

2. Terminology and concepts

Formal equality: Formal equality would be achieved if a measure provides for the same
standard to be applied to everyone. There is equality when there is a uniform treatment for
everyone that finds themselves in the same circumstances. Inequality occurs when a measure
lays down different standards for various categories of persons even though they are in the
same position. For example, legislation states that all South African citizens aged 18 years or
older may vote in the general South African election.

Substantive equality: Substantive equality requires that the different conditions that persons
(of different categories) might find themselves be examined. This may highlight those different
categories of persons, finding themselves in different positions, may experience the same rule
differently – some favourable and others unfavourably. This requires that different standards
be applied to different categories of persons (finding themselves in different positions)
precisely to achieve equality. In this case, inequality occurs when the same standard is applied
to different categories of persons requiring different treatment to achieve equality. For
example, legislation states that all public buildings must be fitted with a ramp so wheelchair
users can enter the building.

Restitutionary or corrective equality: In National Coalition for Gay and Lesbian Equality v
Minister of Justice 1999 (1) SA 6 (CC), the court observed that action is required to reach
equality. This means that a mere laissez faire approach (only amending problematic laws
without taking further action) will not achieve equality and that corrective measures must be
instituted.

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Direct and indirect discrimination: These terms, in the South African context, relate
specifically to the list of grounds mentioned in section 9(3) of the Constitution. With direct
discrimination, it will be apparent that the differentiation is constituted on a ground listed. With
indirect discrimination, the differentiation on the face of it does not discriminate on the listed
ground. However, the effect amounts to an infringement of one of the listed grounds. An
example would be legislation stating that all public spaces only have to be fitted with a urinal
(and not a toilet). Although the legislative provision does not refer to sex, the consequence will
be that women (in general) will not be able to urinate in public settings, as they cannot use a
urinal.

3. Section 9 of the Constitution

Let us have a look at the wording of the Constitution:

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Section 9(1): Formal equality.

Section 9(2): Substantive, as well as restitutionary equality.

Section 9(3): The grounds that constitute discrimination rather than differentiation.

Section 9(4): The horizontal application of the right to equality and against unfair
discrimination.

Section 9(5): The presumption of the unfairness of discrimination (which does not attach to
differentiation).

Take note: Both direct and indirect discrimination is sanctioned by the Constitution.

4. Answering a question
In South Africa, we take a two-stage approach to limiting rights. First, we look at the
infringement stage. In terms of this analysis, we have to consider whether or not a constitutional
right was violated. This means that we have to understand what the constitutional right consists
of. Second, we evaluate the proportionality of the proposed infringement.

This section of the work is primarily concerned with the first part of this analysis. It is essential
to note that – legally speaking – unfair discrimination is not stronger regulated than unfair
differentiation. Nor is fair discrimination any more reprehensible than fair differentiation. The
main (and most important) difference between the two is the presumption of unfairness
(section 9(5)).

The schematic on the next page sets out the steps that need to be taken to establish whether or
not there was a violation of section 9. If the steps are followed, and no violation is found, then
the right to equality (as entrenched in section 9) was not infringed, and the claim lapsed. If the
steps are followed, and an actionable violation is found (i.e. unfair discrimination or
differentiation), the second stage of constitutional limitation is undertaken (the proportionality
analysis).

This means that unfair discrimination / differentiation might still be constitutional if it musters
the proportionality analysis of section 36.

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 Does the provision distinguish between people or categories of people

Yes No

Is the distinction
based on a ground
listed in section
9(3) Constitution?

Yes No

Is the distinction based on a ground similar to those listed in

section 9(3) (is the ground 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 adversary manner).

Yes No

The distinction
amounts to The distinction amounts to
DISCRIMINATION DIFFERENTIATION

Is the discrimination unfair? Does the differentiation bear a rational

Factors to consider include purpose of the connection to a legitimate government
discrimination; impact of discrimination on purpose it is designed to further or
complainant; position of complainant in SA achieve?
society; are less severe methods available to
achieve the same purpose (see section 14
PEPUDA for full list) Yes
No

Yes Section 9(1) is

No
breached

Section 9(3) is
breached

No violation
of section 9

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5. A few examples and conclusion
Let us look at two case studies to practice the skills you acquired above:

Case study 1: An advertisement in a Johannesburg newspaper reads as follows: ‘Wanted: A

white woman in her twenties with a very light complexion and red hair for modelling a new
make-up range named Scottish Lass on the public broadcasting network. Applicants must have
experience in the television industry, may not be older than 30 years, and must be fluent in
Gaelic. Your client, Ms Frances McKay, is a woman that meets all of the criteria, except that
she cannot speak Gaelic. Her application was rejected, and she approaches you, an expert in
human rights litigation, for advice. Ms McKay believes that the requirement to be fluent in
Gaelic is unfair, as the advertisement will be recorded in English. Prepare an argument where
you submit that there has been discriminated against your client. [5 marks]

Case study 2: Ms Jolandi Botha approaches you, an expert in human rights litigation,
immensely upset as her application to work as an exotic dancer was turned down by a nightclub
in Cresta. Ms Botha suffers from obesity, and she believes she has been discriminated against
because of her weight. Advise Ms Botha fully. [5 marks]

From my side, students, I wish you all the best with your assessment! The right to equality and
against unfair discrimination is fundamental in our constitutional framework – never stop
learning about it.

Happy studying!