Study Theme 10: The right to Equality

Question 1

Hoffman v Khosa

Answer 1

Defines what unfair discrimination is

Question 2

What are the different types of Equality

Answer 2

• Formal Equality
• Restitutionary or Corrective Equality
• Substantive Equality

Question 3

Formal Equality

Answer 3

• Measures provides for the same standard to be applied to everyone
• Therefore, for uniform treatment for everyone in the same circumstances

Question 4

Restitutionary or Corrective Equality

Answer 4

• These are those measures that can be described as equity based and are usually done in the form affirmative action measures

Question 5

Substantive Equality

Answer 5

• This requires that different standards be applied to different categories of persons (finding themselves in different positions) precisely in order
  to achieve equality.

Question 6

What are the two types discrimination

Answer 6

• Direct discrimination
• Indirect discrimination

Question 7

Direct discrimination

Answer 7

• occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category

Question 8

Indirect discrimination

Answer 8

the measure or conduct does not discriminate openly. The measure appears to be neutral, but the effect is to discriminate, that is, to treat a particular category in a way that is detrimental compared to other categories.

Question 9

Section 9 of the Constitution

Answer 9

Everyone is equal before the law and has the right to equal protection and benefit of the law.

Question 10

Harksen v Lane

Answer 10

the test for unfair discrimination

1st Stage: Discrimination stage - Has anyone been discriminated against the grounds of S9(3)
2nd Stage: Unfairness stage - When found to be discriminatory, check if it unfair in S9(5). If ground is not listed, burden is on the complainant to establish unfairness.

Question 11

What is meant by not on a listed ground

Answer 11

• Citizenship
• Khosa v Minister of Social Development
• The burden would be on Mr Khosa to prove that the discrimination on the basis of
  citizenship is unfair

Question 12

What are the factors for the unfairness stage:

Answer 12

i. Whether victim was detrimentally affected by past discrimination;
ii. Legitimacy or purpose of the discrimination;
iii. The extent to which the rights of the victim are infringed.