The righT

To equaliTy

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The right to equality and non-discrimination
Section 9 of the constitution
(1) Everyone is equal before the law and has the right to equal protection and benefit of the
law.
- Everyone includes anyone within the borders of SA

(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.

▪ This includes affirmative action is justified given our historical context of racism.
▪ Sometimes to achieve equality unfair discrimination can be used.

(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. (Vertical Application)

(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. (Horizontal Application)

▪ Person here also includes juristic persons.

▪ PEPUDA is national legislation enacted 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.
The right to equality encapsulates the aspiration of eventually achieving a society in
which all enjoy equal access to the resources and amenities of life, and are able to
develop their full human potential.

Consequences that flow:

Right to equality is not a right to be treated identically at all times.
The focus is on the effects or impact of the legal rules.
▪ the right to equality must guarantee more than equality before the law and must
focus on the effects or impact of legal rules or other differentiating treatment on
individuals.
▪ The right to equality cannot therefore focus merely on whether two people have been
treated in an identical manner by the legal rule or by the institution or individual
concerned

Substantive equality vs formal equality

Black people, Women, gay men and lesbians, people with disabilities, HIV-positive
people, foreigners, religious minorities and many individuals with distinctive attributes
or characteristics have also suffered marginalisation and exclusion and to some
extent still do.

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Formal equality
Formal equality focuses on the formal way in which the law treat individuals or
groups.
It explicitly denies the need to take into account the social and economic context or
the differences in power, status and opportunities between individuals or groups of
individuals when judging whether the equality injunction has been breached or not.
Formal equality demands that all people should be treated in the same manner,
regardless of their personal circumstances, their history, their social and economic
status, and whether they have been discriminated against in the past or still face
discrimination in the present.
Formal equality demands neutrality and does not accommodate different treatment of
people who are socially and economically different from one another.
The harm of discrimination is situated in the failure of a government to treat people
as equally fair.

Criticism of formal equality

The concept of formal equality is often criticised because this neutral approach to
equality masks forms of bias.
It ignores the fact that neutral standards often embody the interests and experiences
of socially privileged groups whose views and attitudes are so dominant that they
have become invisible and appear to be neutral.
Formal equality is also said to ignore the actual social and economic differences
between people, how this affects people’s chances in life and the different power
wielded by different individuals and groups in society.
As such, an insistence on the formal equal treatment of all people – regardless of
their social and economic status – may exacerbate the inequality of socially and
economically marginalised and vulnerable groups.
It does this by ignoring the actual inequality between the dominant or privileged
groups and marginalised and vulnerable groups and the ways in which seemingly
neutral rules continue to advantage the privileged and dominant in society.

Substantive equality
It focuses on the actual economic, social, and political conditions of groups and
individuals in society.
As such the constitutional court stated that Particularly in a country such as South Africa,
persons belonging to certain categories have suffered considerable unfair discrimination in
the past. It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that
statutory provisions which have caused such unfair discrimination in the past are eliminated.
Past unfair discrimination frequently has ongoing negative consequences, the continuation of
which is not halted immediately when the initial causes thereof are eliminated, and unless
remedied, may continue for a substantial time and even indefinitely. Like justice, equality
delayed is equality denied.
Substantive equality asks what impact differentiating legal rules or other
differentiating treatment will have on groups or individuals, given differences in the
social and economic status of such groups or individuals, and given the way in which
existing ‘neutral’ legal rules privilege the economically and culturally dominant and
powerful in society.
A legal commitment to substantive equality therefore entails attention to the context.

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 This context includes the social and economic inequalities in society, the effects of
past and ongoing prejudice and discrimination on the basis of race, sex, gender,
sexual orientation, disability, economic status and other grounds on the life
opportunities of individuals.
The context also includes the manner in which private relationships, such as
marriage and child-rearing duties, continue to be structured in ways that produce or
perpetuate disadvantage and subordination.
NB NB NB ! The focus is on the impact of the treatment instead of the treatment
itself.
Substantive equality is remedial in nature and aims to overcome the effects of past
and ongoing prejudice and discrimination as well as the broader structural reasons
for the disempowerment and economic disadvantage faced by some individuals or
groups in society.
The factors that need to be considered by substantive equality : personal
circumstances, history, social and economic status, effects and impact of legal rules
and lastly remedial in nature (in overcoming the effects of the past ), all of these
factors need to be considered.

Minister of Finance and Other v Van Heerden

▪ This case raised important constitutional issues of equality and restitution measures.
▪ Mr van Heerden (applicant) argued that rules of the Fund offend the equality provisions (s9.1)
of the Constitution because they are unfairly discriminatory.
▪ The Minister argued (respondent) that the differentiation in the rules of the Fund are not
unfairly discriminatory because it constitutes a “tightly circumscribed affirmative action
measure” permissible under the equality provisions of our Constitution, Referring to 9.2
▪ Outcome: Concourt held that the differentiation is sometimes warranted and not
discriminatory in nature.
▪ Concourt established the van Heerden test/inquiry to determine whether remedial measures
are permissible
▪ HELD FURTHER, 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.
▪ The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of
disadvantage.
▪ It is therefore incumbent on courts to scrutinise in each equality claim the situation of the
complainants in society; their history and vulnerability; the history, nature and purpose of the
discriminatory practice and whether it ameliorates or adds to group disadvantage in real life
context, in order to determine its fairness or otherwise in the light of the values of our
Constitution.
▪ In the assessment of fairness or otherwise a flexible but ‘situation-sensitive’ approach is
indispensable because of shifting patterns of hurtful discrimination and stereotypical response
in our evolving democratic society.
▪ The unfair discrimination enquiry requires several stages.

The context in which a court must judge an equality case is formed by :

1. The constitutional context in its entirety
2. Second, the court must take into account the country’s recent history, particularly
the systematic discrimination suffered by black people under apartheid as well as
systematic patterns of discrimination on grounds other than race that have
caused, and may continue to cause, considerable harm.
3. Any consideration of whether a legally relevant differentiation actually constitutes
a breach of section 9 must therefore take into account the history of the

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 impugned provision as well as the history of the group or groups to which the
complainant belongs.
4. Taking this context into account, the court determines whether the legally relevant
differentiation aims to create or perpetuate patterns of group disadvantage, or
whether it aims to break down these structural inequalities and thus reach for true
or substantive equality.
5. If the latter is the case, the court will be reluctant to declare the measures
unconstitutional or unlawful.

The courts approach requires a contextual analysis

It may thus take into account the ongoing structural inequality in society when
deciding on the unfairness of the discrimination.
The court’s contextual or remedial approach acknowledges that inequality results
from complex power relations in society.
The aim of this is to ensure hat all individuals are treated as if they have the same
moral worth.

To sum up substantive equality

Note: the focus is the impact of the treatment instead of the treatment itself.
Substantive equality is remedial in nature and aims to overcome the effects of past
and ongoing prejudice and discrimination.
It requires a retreat from legal formalism and a focus on the underlying purpose of
the right to equality – what harm it seeks to address – as well as the values
underlying equality.

The harm to be addressed rests on at least 3 pillars:

1. The culturally constructed ideology of differences based on the belief in the
superiority of dominant groups and the inferiority of non-dominant groups
2. The economic exploitation and disempowerment of those without power because
of their race, sex, gender, sexual orientation or other attributes
3. In the South African context, also the previous political disenfranchisement
(marginalisation) of black South Africans.

A table differentiating between formal and substantive equality.

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 Differentiation and discrimination
Differentiation is not discriminatory if it aims to redress inequalities of the past or
marginalised groups (race, gender, sexual orientation) as in accordance with s 9(2) of
the constitution.
Values underlying the right to equality: human dignity and equality.
The judges of the Constitutional Court have unanimously embraced the idea that at
its core, the equality guarantee protects individuals’ human dignity.
This court placed human dignity at the heart of its equality enquiry.
The Court accepts that the equality guarantee protects individuals from differentiation
based on one of the specified grounds in section 9(3) or similar forms of
differentiation that have the potential to infringe on a person’s fundamental human
dignity.
The concourt stated that human dignity will be impaired whenever a legally relevant
differentiation treats people as ‘second-class citizens’, ‘demeans them’, ‘treats them
as less capable for no good reason’, otherwise offends ‘fundamental human dignity’
or where it violates an individual’s self-esteem and personal integrity.
This idea of dignity is based on the notion that all human beings have an equal moral
worth – the right to be treated with equal concern and respect –
It has been concluded that equality without dignity is inhuman.

Attacking the constitutionality of a legislative provision: s9 of the

Constitution
PEPUDA gives effect to section 9 of the constitution and thus must be relied upon
first before relying on s9.
The test of equality is to be applied in three situations:
1. Differentiation that amounts to mere differentiation (section 9(1))
2. Different treatment mandated to advance an affirmative action policy (section
9(2)).
3. Differentiation that amounts to discrimination but is not part of an affirmative
action policy (section 9(3)).

Mere differentiation – s 9(1)

Mere differentiation is where a legislative provision differentiates between people or

groups of people but this differentiation is not based on one of the listed grounds
listed in s9(3). For example tax class divisions, different types of prisoners and rarely
amounts to discrimination.
This section means that firstly, everybody is entitled, at the very least to equal
treatment by our courts of law.
Secondly, that none should be above or beneath the law and that all are subject to
law impartially applied and administered.
Examples of mere differentiation include distinctions between different types of
prisoners or distinctions between different classes of taxpayers.

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 Section 9(1) applies in cases where the legislative provision differentiates
between people or groups of people, but this differentiation is not based, either
directly or indirectly, on one of the grounds listed in section 9(3) or on an
analogous ground that is similar to the grounds explicitly listed in section 9(3).
▪ This is known as mere differentiation.
Mere differentiation is therefore referring to the many distinctions that the law makes
that have nothing to do with the kind of discrimination based on race, sex, gender or
other grounds listed in or similar to those listed in section 9(3) of the Constitution.
Mere differentiation, when differentiating, the state needs to function in a rational
manner.
They may not distinguish between groups in a way that is irrational.
The state will need to show that the purpose is not arbitrary(subjective) nor irrational
and that it does not distinguish between people or groups of people in a way that is
irrational.
Rationality is part of accountability and justification in a democratic state.
It is important in a rationality enquiry ‘to identify and examine the specific government
object sought to be achieved by the challenged rule of law or provision’ and a court
will not rely on a generic general purpose identified.
However, all the state has to show is that the purpose was neither arbitrary nor
irrational for the differentiation to be in line with s9(1).
It does not have to show that the purpose pursued was a wise one or one with which
the Court agrees.
However, where there is no discernible purpose for the differentiation, the court will
find the legislative provision to be in breach of s 9(1).

Ngewu and Another v Post Office Retirement Fund and Others,

▪ The Court declared certain sections of the Post Office Act 66 unconstitutional as they
breached section 9(1) of the Constitution.
▪ This was because the impugned provisions treated divorced spouses of employees of the
Post Office differently from other divorced spouses whose treatment is regulated by other
legislation.
▪ The Constitutional Court found that this differentiation was irrational as it had no basis.
▪ The different treatment was an anomaly that could not be explained in a rational manner.
▪ As the different treatment was not based on a ground like race or sex or gender, but on
whether a person worked for the Post Office or another employer, the Court relied on section
9(1) to invalidate the provisions of the Post Office Act.
▪ However, because the rationality test is applied relatively strictly, the Court does not often
invalidate legislation because it breaches section 9(1) of the Constitution.

What basis is Ms Ngewu being treated differently on ?

▪ Is it on the ground of marriage? Now that she is divorced (and no longer married) she cannot
claim her inheritance… is this what the provision in the Post Office Act is saying?
▪ NO!
▪ The provisions state that a pension interest is paid out upon retirement!
▪ This applies to married or unmarried persons!
▪ There are NO special privileges based on marriage.

So on what basis is the differentiation founded?

▪ The different treatment was not based on a ground on a listed ground but on whether a
person works for the post office or not.

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 Rules of the pension fund.
▪ The rules of the pension fund stated that Ms. Ngewu would only be able to acquire her share
of the pension interest when Mr. Ngewu terminates his membership with the fund.
▪ NOT at the time of divorce.
▪ The rules of the pension fund are contained in the Post Office Act.
▪ Note: According to the pension fund Act, the pension fund interest is paid upon divorce.

In conclusion:

Decision of the court.

• The differentiation violates the requirement of equality before the law in terms of s 9(1).
•
Mere differentiation rarely constitutes discrimination.

Redress measures (affirmative action)- s9(2)

This section recognises that the achievement of equality requires the state and other
powerful institutions in society to take positive steps to address the deep social and
economic inequalities in society.
In addition, the state and other powerful institutions must also address the structures
and systems in society that help to perpetuate this inequality.
These structures and systems prevent individuals from enjoying equal opportunities
and benefits that will allow them to flourish because opportunities and benefits are
available to some people but not to others in society.
The aim of these is to eradicate a system that perpetuates inequality and to address
social and economic inequality to achieve equality in the long term.
Section 9(2) ‘imposes a positive duty on all organs of state to protect and promote
the achievement of equality – a duty which binds the judiciary too’.
NB!!!! A constitutional challenge to restitutionary measures – even based on
any of the grounds of discrimination listed in section 9(3) – must be tested
against section 9(2).
▪ Once a court has determined that the measures comply with the requirements
of section 9(2), they cannot be presumed to be unfairly discriminatory and
cannot be tested against section 9(3).
▪ This means that if it is shown that measures comply with section 9(2), this is a
complete defence against any charge that the measures unfairly discriminate
against anyone.
▪ Thus, the court uses s9(2) to test legislative provisions that implement affirmative
action measures.

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 ▪ However when it finds that such measures do not comply with s 9(2), the court can
test their constitutionality against s 9(3).
▪ In the achievement of Equality, the state (and other institutions in society) are
required to take positive steps to address the deep social and economic inequalities
in society

Section 9(2) applies to cases where the legislative provision explicitly aims to
give effect to restitutionary measures.
▪ This enhances the notion of substantive equality.
▪ The substantive notion of equality recognises that there are uneven race, class and
gender levels and forms of social and systemic differentiation.
▪ Constitutional Court stated in Van Heerden, the precedent-setting case on section
9(2), corrective or restitutionary measures are mandated by section 9(2) as part of a
‘credible and abiding process of reparation for past exclusion, dispossession, and
indignity within the discipline of our constitutional framework’

The test for redress ( affirmative action) in terms of s 9(2)

To determine whether a set of corrective measures comply with s9(2) a court will focus on 3
distinct questions, below:

1. Do the measures target persons or categories of persons who have been

disadvantaged by unfair discrimination ?
▪ This question focuses on the group that is being targeted for advancement because it was
previously subjected to unfair discrimination and continues to suffer from the effects of that
discrimination.
▪ A court asks whether the programme of redress is designed to protect and advance a
disadvantaged class.
▪ This means that the measures of redress chosen must favour a group or category designated
in section 9(2).
▪ The beneficiaries, either individuals or categories of persons who belong to an identifiable
class defined by their race, sex, gender, disability or sexual orientation, must be shown to
have been disadvantaged by unfair discrimination.
▪ Because the test focuses on whether the group has been disadvantaged in the past by unfair
discrimination, such groups include black (rather than white) citizens; women (rather than
men); gay men and lesbians (rather than heterosexuals); people living with disabilities
(rather than able-bodied people); and people living with HIV (rather than HIV-negative
people).

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▪ Nevertheless, not every single person who benefits from a restitutionary programme needs to
have been disadvantaged by unfair discrimination.
▪ What is required is that an ‘overwhelming majority of members of the favoured class are
persons designated as disadvantaged by unfair exclusion’.

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2. Are the measures designed to protect or advance such persons or categories of
persons?
▪ The second requirement for a valid restitutionary programme is that the measure must be
designed to protect or advance those disadvantaged by unfair discrimination.
▪ The measures ‘must be reasonably capable of attaining the desired outcome’ - (of addressing
the effects of past unfair discrimination).
▪ The outcome could be to eradicate social and economic inequality between groups as well as
to eradicate the structures of advantage and privilege that help to perpetuate such inequality
▪ Measures must not be arbitrary.
▪ It is important to note that the onus here rests on the party trying to convince the court that the
remedial measures are unconstitutional and do not comply with section 9(2).

3. Do the measures promote the achievement of equality in the long term?

▪ This requirement asks whether the remedial measures promote the achievement of
equality in society.
▪ Value judgment in the light of all the circumstances.
▪ These circumstances include the history of marginalisation and oppression of people based
on race, sex, sexual orientation and other grounds, the current social and economic status of
various groups previously unfairly discriminated against, as well as the prevalence of racism,
sexism, homophobia and other forms of misrecognition still prevalent in society.
▪ Courts must also look at the effect the remedial measures will have on the groups/group who
may be negatively affected.
▪ remedial measures promote the achievement of equality in the long term.
▪ What is required is a balancing of different interests: the interests of those people
suffering from the effects of past or ongoing unfair discrimination on the one hand,
and the interests of those people who benefitted from past unfair discrimination or
continue to benefit from the lingering effects of that discrimination on the other hand.
▪ A court must therefore look at the effect the remedial measures will have on the
group or groups who may be negatively affected or who may not be targeted by the
measures.

Summary: the test for redress (affirmative action)

▪ To determine whether a set of corrective measures comply with s9(2) a court will
focus on 3 distinct questions:

1. Do the measures target persons or categories of persons who have been

disadvantaged by unfair discrimination?
2. Are the measures designed to protect or advance such persons or categories of
persons?
3. Do the measures promote the achievement of equality in the long term?

Van Heerden v Minster of Finance

Redress measures affirmative action
▪ Individuals who became Members of Parliament in the year 1994 were given more
advantageous pension benefits for a period of 5 years.
▪ This program EXCLUDED individuals who WERE Members of the apartheid Parliament - who
continued to serve in Parliament after 1994.

Differentiation? Rule 4.2.1

▪ This judgment is an appeal (to the Constitutional Court) over an order made by the High
Court.

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 ▪ In the High Court Mr. Van Heerden complaining that the differentiation in the employer
contributions laid down by Rule 4.2.1 (that provided for more advantageous pension benefits)
were arbitrary, unreasonable and unfairly discriminatory.

▪ High court Ruling : found that it amounted to unfair discrimination because rule 4.2.1 was not
a measure designed to advance a previously disadvantaged group.

Con court
▪ Where appeal took place.
▪ The applicant’s complaint is that the High Court misconceived the true nature of equality
protection recognised by our Constitution.
▪ The applicants further allege that the High Court resorted to a formal rather than substantive
notion of equality.
▪ The constitutional Court upheld the appeal and set aside the order of the High Court which
declared Rule 4.2.1 unconstitutional.
▪ Affirmative action measures

• Thus, these affirmative action measures are not reverse discrimination or positive
discrimination.
• S 9(1) and s 9(2) are complementary; both contribute to the constitutional goal of achieving
equality to ensure full and equal enjoyment of all rights.
• To that end, Differentiation aimed at protecting or advancing persons disadvantaged by unfair
discrimination is warranted provided the measures are shown to conform to the internal test
set by s 9(2).
• This court found that the legislative and other measures properly fall within the requirements
of s9(2) and that they are not presumptively unfair.

Unfair discrimination: s9(3)

▪ Fact: Some legislative provisions differentiate between people or groups.
▪ The court will rely on section 9(3) to determine whether the discrimination is unfair.
Unfair = conflict with the equality provisions of the constitution.
▪ How may discrimination be fair? There may be a rational relationship between the
differentiation in question and a governmental purpose meeting the 9(1)
requirements.
▪ In other cases the discrimination gives effect to 9(2) (affirmative action measures)
and are justified.
▪ In Harksen v Lane NO and Others, the Constitutional Court stated that a determination of
whether differentiation amounts to unfair discrimination in terms of section 9(3) requires a
two-stage analysis:

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 ▪ First, the court has to determine whether the differentiation in fact amounts to discrimination.
IF YES, THEN
▪ Second, if it does, the court has to determine whether the discrimination amounts to unfair
discrimination.

▪ This section prohibits unfair discrimination.

▪ Only fair discrimination is permitted.
▪ When a legislative provision differentiates against anyone or any group on any of
these grounds above , a court will find that the differentiation amounts to
discrimination.
▪ When discrimination occurs on a listed ground, it is presumed, in accordance with
s9(5), that the discrimination is unfair and hence unconstitutional.
▪ Analogous ground allows the court to discover new forms of discrimination not
explicitly recognised by the drafters of the Constitution.
▪ A court is required to make an objective assessment about two important questions
to determine whether discrimination has occurred on an analogous ground:
▪ First, the court must determine whether the differentiation relates to the unequal
treatment of people based on other ‘attributes and characteristics attaching to them’
which are not related to the specified grounds but are nevertheless comparable to
them.
▪ Second, the court must determine whether this differentiation has the effect of
treating persons differently in a way which ‘impairs their fundamental dignity as
human beings, who are inherently equal in dignity’ or affects a person adversely in ‘a
comparably serious manner.
▪ In Hoffmann v South African Airways, the Constitutional Court found that where
HIV-positive individuals are treated differently based on their HIV status, this
constitutes discrimination on the analogous ground of HIV status.
▪ Direct discrimination occurs where a provision specifically differentiates based on
either a listed or an unlisted ground. For example, a legislative provision that
differentiates between men and women.
▪ Indirect discrimination occurs where certain requirements, conditions or practices,
while appearing neutral, actually have an effect or result that is unequal or that
disproportionately affects a group defined in terms of a listed or analogous ground.
▪ For example, in the South African context with its deeply entrenched racialised
residential patterns, a measure that treats people in one geographical area differently
from people living in another geographical area may constitute indirect racial
discrimination.
Indirect discrimination in Jordan case

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 Is the discrimination unfair?
▪ Once it is shown that the differentiation constitutes discrimination - either on a ground
listed in section 9(3) or on an analogous ground and whether direct or indirect - the
enquiry moves to the question of whether the discrimination is fair or unfair.
▪ Note: When discrimination occurs on a listed ground, it is presumed, in accordance
with 9(5), that the discrimination is unfair and hence unconstitutional.
▪ It is however possible to rebut the presumption and establish that the discrimination
is not unfair
▪ As the Court remarked in Harksen, the prohibition on unfair discrimination ‘provides a
bulwark against invasions which impair human dignity or which affect people
adversely in a comparably serious manner’.
▪ This remark seems to imply that any determination of the unfairness of the
discrimination depends on whether the human dignity of the complainant has been
impaired.
▪ The Court therefore stressed that what is important is that the enquiry focus on the
impact of the discrimination on the victim.
▪ To determine whether the discriminatory provision has had an unfair impact on a
complainant, a court must consider various factors. Although there is no closed list of

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 factors, the Constitutional Court in the Harksen case highlighted the following factors
to guide this enquiry:
a. The position of the complainants in society, 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.
▪ The examination is often backward looking establishing the historical factors that led
to patterns of group disadvantage and harm.
▪ They can belong to a group that is economically marginalised and/or suffers from
stigmatisation, marginalisation or prejudice, for instance because of racism, sexism,
homophobia or HIV stigmatisation, and/or political minority status.

b. The nature of the provision or power and the purpose sought to be

achieved by it.
▪ Is the provision directed at impairing human dignity?
▪ Does the provision further the achievement of substantive equality?
▪ Does it further some other important societal or legislative goal?
▪ Eg. Prohibition on blind people from acquiring a driver's license discriminates against
a group on the basis of disability. However, this discrimination may well be found to
be fair because the discrimination is aimed at achieving an important purpose,
namely to ensure road safety
▪ NOTE: The more important and pressing the purpose of the discrimination, the more
likely a court will find the provision to be fair.

c. To what extent the discrimination has affected the rights or interests of the
complainants and whether it has led to an impairment of their fundamental
human dignity or constitutes an impairment of a comparably serious
nature.
▪ The more invasive the nature of the discrimination is, the more likely the
discrimination will be held to be unfair.
▪ Eg. National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others - here the court found that the discrimination against gays and
lesbians was ‘severe’ since ‘no concern, let alone anything approaching equal
concern’ was shown towards the group.
▪ A court must ask whether, given the factors above, it would be fair to discriminate
against a group.
▪ It will not be fair if the discrimination fundamentally affects the human dignity of the
group of complainants.
▪ This contextual test is aimed at protecting all individuals in society without hampering
the achievement of substantive equality which provides that individuals belonging to
different groups may have to be treated differently in certain circumstances.
▪ The determination must take into account South Africa’s particular history as well as
the structural inequality in our society which promotes and perpetuates the
subordination of certain individuals and groups.
▪ Both the social and economic effects of past discrimination as well as the continuing
prejudice and stigmatisation of people belonging to disfavoured groups frame this
contextual enquiry into the fairness or unfairness of the discrimination.

Summary of section 9
▪ 9(1) = rationality test (Ngewu)
▪ 9(2) = the 3 questions (see above a,b,c)
▪ 9(3) = the test for unfair discrimination (see Harksen v Lane)

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 ▪ Note: a court should first consider s9 and then s36!!!

HARKESEN V LANE 1998

TEST FOR UNFAIR DICRIMINATION

▪ This case concerns the constitutionality of provisions of the Insolvency Act -

specifically s21.
▪ Mr and Mrs Harksen are married out of community of property.
▪ Mr Harksen is declared insolvent and his estate is sequestrated.
▪ This occurs in 1995, under the Interim Constitution.
▪ The provision states that the property of a solvent spouse is to vest in the Master
(until a trustee is appointed) as if it were the property of the sequestrated spouse's
estate. The trustee or master can then deal with the property accordingly.

The grounds (s9(3)

▪ Marginised
▪ Oppress
▪ Have the potential, when manipulated, to demean persons(human dignity).

STAGE 1: does this amount to discrimination?

The ground
▪ The treatment of solvent spouses because of their close relationship to the insolvent
spouse or because they are spouses in the first place.
▪ Can it constitute discrimination?

Discrimination on an analogous ground

▪ A court is required to make an objective assessment about 2 important questions to
determine whether discrimination has occurred on an analogous ground:
1. The court must determine whether the differentiation relates to the unequal
treatment of people based on other ‘attributes and characteristics attaching to
them’ which are not related to the specified grounds but are nevertheless
comparable to them.
2. The court has to determine whether this differentiation has the effect of treating
persons differently in a way which ‘impairs their fundamental dignity as human
beings, who are inherently equal in dignity’ or affects a person adversely in ‘a
comparably serious manner.’ – Harksen

▪ The court noted that : The differentiation does arise from the complainants
attributes or characteristics as solvent spouses, namely their close relationship with
the insolvent spouse. According to the court, these attributes have the potential to
demean persons in their human dignity.
▪ Thus this discrimination is analogous and does fall within s9(3).

STAGE 2: is the discrimination unfair ?

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▪ The test for unfair discrimination is as follows:
a. The position of the complainants in society, 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.
b. The nature of the provision or power and the purpose sought to be achieved by it.
c. To what extent the discrimination has affected the rights or interests of the
complainants and whether it has led to an impairment of their fundamental
human dignity or constitutes an impairment of a comparably serious nature.

Is this unfair discrimination

▪ The position of the complainants in society? Solvent spouses are not a vulnerable
group which has suffered discrimination in the past.
▪ Nature of the provision and the purpose sought to be achieved by it? The legislature
has the duty to protect the public interest. In the Act, the legislature gave effect to that
duty by protecting the rights of the creditors of insolvent estates.
▪ Thus , this is fair discrimination.

▪ Discrimination relates to the unequal treatment of people based on attributes

and characteristics attaching to them.
▪ Unfair discrimination treating people differently – in a way which impairs
their fundamental dignity as human beings, who are inherently equal in
dignity.

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