Midterm: Kapp

Question 1

What is the statement from Law that Kapp modified/challenged?

Answer 1

In Law, the Court suggested that discrimination should be defined by the impact of the law on “human dignity” regarding 4 contextual factors:

1. pre existing disadvantage
2. degree of correspondence between differential treatment and reality
3. whether the law has an ameliorative purpose
4. the nature of the interest affected.

Question 2

What was the argument against the human dignity analysis in Kapp?

Answer 2

human dignity is an abstract and subjective notion that can be confusing and difficult to apply, and is additionally burdensome on equality claims

Question 3

Which of the four contextual factors from Law did Kapp focus on and why?

Answer 3

Kapp judgement suggested that the ameliorative purpose or effect of a law goes to whether the purpose is remedial within the meaning of s15(2). THey also suggested that this thurd factor might be relevant to whether the law is to perpetuate disadvantage.

Question 4

What was the esssence of the claim in Kapp?

Answer 4

That the communal fishing licence discriminated against them on the basis of race. Raised the issue of interplay between s 15.1 and .2, specifically requiring the court to consider whether .2 is capable of operating independently of .1 to protect ameliorative programs from claims of discrimination.