Revision

Question 1

What is the legal test for differentiation under section 9(1) of the Constitution?

Answer 1

Mere differentiation:
- The distinctions are unrelated to discriminatory grounds such as race or gender
- Requires rationality in differentiation by the state

Question 2

What is the difference between mere differentiation under section 9(1) and discrimination under section 9(3)?

Answer 2

Discrimination under section 9(3) is based on discriminatory grounds and tested using the section itself.

WHEREAS

Mere differentiation does not involve discriminatory grounds and its rationality is determined by the state.

Question 3

What is formal equality?

Answer 3

1.) Belief that all individuals are born free and equal
2.) Perceives discrimination as a failure of the state to treat its people equally free under the law
3.) Demands equal treatment for everyone regardless of personal circumstances or history
4.) Focuses on formal treatment under the law and denies considering socio-economic context or power differences

Question 4

What is formal equality criticised for?

Answer 4

Masking bias and perpetuating inequality by not acknowledging social and economic differences

Question 5

What is substantive equality?

Answer 5

1.) Recognises structural or systemic reasons for unequal opportunities to reach full potential
2.) Focuses on actual economic, social and political conditions of individuals and groups in society
3.) Emphasises understanding and addressing economic, social and political imbalances to achieve genuine equality

Question 6

What does section 38 deal with?

Answer 6

The ability for anyone acting on behalf of another person who cannot act in their own name, anyone acting as a member of or in the interest of a group or class of people is able to approach the court to allege an infringement of a BOR.

Question 7

What does section 10 state about human dignity?

Answer 7

That everyone has inherent dignity and the right to have their dignity protected and respected.

Question 8

What did the court recognise in President of RSA and Another v Hugo?

Answer 8

That prohibiting unfair discrimination enables the establishment of a society where all individuals are treated with equal dignity and respect regardless of their group membership, Definition of dignity was extended.

Equality goes hand-in-hand with dignity - Prinsloo v Van de Linde