Chapter 8 - Equality

Question 1

Stages of equality

Answer 1

The court laid down the stages of enquiry concerning an equality matter in Harkes v Lane NO

Question 2

Stage 1

Answer 2

1. Does the law or conduct differentiate between people or categories of people?
2. If so, is there a rational connection between the differentiation and a legitimate governmental purposes?
3. If not, there is a violation of section 9(1). If it does bear a rational connection, then there is no violation of section 9 (1), but it might nevertheless amount to discrimination. Therefore we must move on to the next stage of the enquiry.

Question 3

Stage 2

Answer 3

1. Does the differentiation amount to discrimination?

(a) If it is based on specific ground; that is, a ground listedin section 9(3), the discrimination is established.

(b) If it is based on an unspecified ground, the applicant must prove the discrimination by showing that the differentiation is based on characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(c) Once discrimination has been established, we go on to the next person

2. Does the discrimination amount to unfair discrimination?

(a) If the discrimination is based on a specific ground, it is presumed to be unfair in terms of section 9(5)

(b) If the discrimination is based on an unspecified ground, the unfairness will have to be established by the applicant. The test for unfairness focuses on the impact of the discrimination on the applicant and others in the same situation.

Question 4

Stage 3

Answer 4

If the discrimination is found to be unfair, then it will have to be determined whether the provision under attack can be justified under the limitation clause.

Question 5

Establishing a violation of section 9(3)

Answer 5

1. Establishing discrimination
2. Establishing unfair discrimination

Question 6

Establishing discrimination

Answer 6

In order to prove discrimination, an applicant must establish discrimination on a specific ground listed in section 9(3) or an analogous ground (a ground based on characteristics which have the potential to impair the dignity of the person as a human being o to affect him in a comparably serious manner).

Question 7

Establishing unfair discrimination

Answer 7

If discrimination exists on a specific ground, it is presumed unfair in terms of section 9(5) of the Constitution. This means that the unfairness of the discrimination does not need to be proved in this instance. However, if the discrimination is based on an unspecified ground, but has an adverse impact on the dignity of the person, the applicant bears the onus of proving that it is unfair

Question 8

Harksen v Lane

Answer 8

The court held:

1. The position of the complainant in society and whether the complainant was a victim of past patterns of discrimination.
2. The nature of the provision or power and the purpose sought to be achieved by it.
3. The extent to which the rights of the complainant have been impaired and whether there has been impairment of his or her fundamental dignity

Question 9

Affirmative action programmes

Answer 9

Affirmative action programmes must:

1. Promote the achievement of substantive equality
2. Be designed to protect and advance persons disadvantaged by unfair discrimination

Question 10

Objectives of The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Answer 10

1. Prohibiting unfair discrimination
2. Providing remedies for the victims of unfair discrimination
3. Promoting the achievement of substantive equality