Class notes
Constitutional Law 312
- Institution
- Stellenbosch University (SUN)
Notes and Quizzes as well as case summaries
[Show more]
Connected book
Book Title:
Author(s):
- Edition:
- ISBN:
- Edition:
Seller
Follow
Content preview
Constitutional Law Exam Notes 312 2020Equality I
1. S9 Constitution
2. De Vos: 418-433; 444-456
3. Promotion of Equality and Prevention of Unfair Discrimination Act
4/2000
4. City Council of Pretoria v Walker (majority judgment of Langa)
5. MEC for Education: KZN v Pillay (majority judgment of Langa)
6. S v Jordan (paras 10-20; 30-31 of Ngcobo and 57-71 of O’Regan and
Sachs)
I - Constitutional concept of equality
Key pointers in constitutional concept of equality
- S1(a) Con - Equality is a value (goal of equality).
- Equality is a context-sensitive right: historical and socio-economic
context plays large role in interpreting the right.
- Human dignity as constitutional value also plays key role in
interpreting right.
Formal and substantive equality
- Formal equality entails norms of identical treatment for different
groups.
o Problems: if you treat people who are fundamentally in
different situations in society.
o Result: deepening disadvantages of certain groups.
o Example: provides equal time for writing tests for those who
have learning disabilities, they will suffer disadvantages which
will end up in their studies taking a toll.
o In SA, we have a history of racial discrimination. Treating
everyone identical could end in perpetuation of injustices of
Apartheid.
- Substantive equality focuses on the historical and social context and
impact of a rule or policy will be on relevant group.
o Court asks: whether the particular rule promotes or
undermines equality of outcomes in sense of equal
participation in society. (does it promote group’s equal
participation in society)
o Aimed at promoting real life equal participation of all groups.
o Paradox: might need to treat groups differently to achieve
equality as an outcome.
- Although a substantive equality approach does not reject equal
treatment in all circumstances, it does sometimes you need to treat
groups differently in order to achieve equality of outcomes. Which
means special advantages may need to be given to promote equal
enjoyment.
,Constitutional Law Exam Notes 312 2020
- Differential treatment that is unfair in one context may not be so in
another. Need to be sensitive to real life political, social and
economic context.
- Identical treatment cannot be done in all circumstances before goal
is achieved – Pres v Hugo.
II – Interpretation of sections 9(1), (3) and (4)
Harksen v Lane Test: CC case dealing with predecessor of S8 of Interim
Con. They had drafting similarities, therefore still relevant and applies to
S9. This test is of application wrt all of S9 except S9(2).
Since enactment of PEPUDA: subsidiarity principles requires that
legislation is applied.
Tests that CC have developed, are still relevant because they prescribe
the general approach to be adopted to claim of unfair discrimination and
secondly, number of elements in PEPUDA test are similar to those applied
in judgments of Harksen, Walker and Jordan. Relevant on how we interpret
and apply PEPUDA.
S9(1) – equality before the law and right to equal protection and benefit of
the law.
CC interpret this provision:
- Any legislation differentiates between different groups (like with tax
groups, succession legislation as to who inherits) = mere differential.
- It is neutral definition between different groups.
- Even this type of differentiation must fulfil two basic requirements: 1
– legislation must have legitimate government purpose. 2 –
legislation must be rationally connected to this purpose. (if it does
not meet these two requirements, it will fail the S9(1) test and
considered a breach).
- Basic idea: all law and policies must be non-arbitrary and have
legitimate government purpose as well as be rationally connected.
- COVID pandemic: distinction between essential services like
supermarkets and that of spaza shops: it could be argued that the
distinction did not meet the test of being rationally connected to a
legitimate goal of combatting this virus as it deprived those who
relied on having access to food and other basic goods during the
pandemic.
- Every classification or distinction must pass this low threshold test of
having legitimate purpose and being rationally connected.
Once found to have a breach or violated S9(1) = unconstitutional.
Possible for state to rely on general limitations clause in S36 to try and
justify the distinction as being reasonable and justifiable limitation of
relevant right.
,Constitutional Law Exam Notes 312 2020
Unlikely: if a measure is found to be irrational, very unlikely to pass the
test of being reasonable and justifiable ito S36 of Con.
Even if requirements of S9(1) are met, it can still be argued that the law,
policy or practice amounts to unfair discrimination ito S9(3) or (4) of Con.
How does CC determine whether or not there has been discrimination?
S9(3) – Prohibition on state not to discriminate (in)directly
does law, policy or practice that differentiates between groups (which has
passed the 9(1) test) amount to discrimination?
CC = differentiation on a listed ground is automatically discrimination
(Harksen v Lane confirmed).
Considerations of three key concepts:
Step One: Discrimination
(a) Listed and unlisted grounds
- Differentiation on listed grounds in (3) or (4) automatically
constitutes discrimination
- Unlisted grounds – whether the ground is based on characteristics
which has potential to impair the fundamental human dignity of
persons as human beings or to affect them adversely in a
comparably serious manner? (based on features) – examples: status
of permanent residence vs citizenship (Khosa & Mahlauli v Min of
Social Dev – only citizens could get social benefits and not
permanent citizens); HIV status (Hoffman v SAA)
(b)Intersectional discrimination
- Discrimination can occur through intersection of grounds (race;
gender)
- Intersectional discrimination often creates unique and deep forms of
disadvantages.
- Can occur on an overlap of grounds (race and gender) which creates
patterns of disadvantage. Example: black women living in rural
areas having systemic disadvantage, which could be different from
black men or white women.
(c) Direct and indirect discrimination
- Direct – law or conduct is discriminatory in its terms “pregnant
women not apply”
- Indirect – law or conduct which appears to be based on a neutral
non-offensive ground but its effects and impacts are discriminatory
(has disproportionately negative impact on a certain group).
o Does not have to show intention to discrimination.
- De Vos: 448-449
- In Walker, the CC described the concept of indirect discrimination as:
“the inclusion of both direct and indirect discrimination within the
, Constitutional Law Exam Notes 312 2020
ambit of the prohibition imposed by S8(2) of the Interim Con (same
as S9(3) of Con) evinces a concern for the consequences rather than
the form of the conduct. It recognises that conduct which may
appear to be neutral and non-discriminatory may nonetheless result
in discrimination and if it does, that it falls within the purview of S
8(2).
- S v Jordan: Interim Con and concerned challenge to provision of
Sexual Offences Act, criminalising only the seller of sex and not the
purchaser.
o Q in case: were the provisions of Act indirectly discriminatory
on grounds of gender?
o Ngcobo (majority) dismissed claims on grounds of gender. Just
because most sex workers were women didn’t automatically
render the legislative provision indirect discrimination. The
object of the law was to outlaw commercial sex and that
distinction between dealer and customer in number of criminal
statutes. (drugs legislation example).
o Minority disagreed with him: making sex worker the primary
offender, reinforces patterns of sexual stereotypes. It is known
that majority of sex workers are women and that by making
them the main offender and subjecting buyer to lesser
penalties, actually sends message that women is the main
guilty party (stereotype of fallen women). In doing so, the
sexual offences entrenches patterns of gender disadvantage
which our Con is committed to eradicating.
o Minority also held that it’s a case where an apparently neutral
differentiating criterion between seller and buyer of sexual
services, impacted more harshly on women, which had the
potential to impair their fundamental human dignity and
personhood.
o Consider which judgment (majority or minority) is more in line
with a substantive approach to equality? Give reasons with
reference to definition of substantive equality described
above.
o Issues: social and economic context within which sex work
takes place? What is the impact of criminalising only the sex
worker but not the purchasers on patterns of gender
disadvantage? What impact does this provision have on
overcoming gender stereotypes and thus making it more likely
for women with an equal chance in society?
Step two: unfairness inquiry
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller LLBPlug. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R75,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
72914 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 15 years now