RONSAM
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FUR2601 Assignment 02
Semester 1 2024
FOR EXAMS, PORTFOLIO, AND ASSIGNMENT
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, QUESTION 1
The South African Constitution prohibits discrimination on several grounds
With the use of case law explain direct and indirect discrimination in terms of
section 9 of the Constitution.
In South Africa, the Constitution, particularly Section 9, prohibits discrimination on
various grounds. This includes race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language, and birth.1 Direct and indirect discrimination are two forms of
discrimination addressed under Section 9, and these concepts have been elucidated
through case law.
Direct Discrimination:
Direct discrimination refers to situations where a person is treated less favorably
than others in similar circumstances because of a protected characteristic. A
prominent case illustrating direct discrimination is Harksen v Lane NO and Others
(1998).2 In this case, the Constitutional Court ruled that a provision within the Aliens
Control Act, which permitted the government to deport an alien who was HIV-positive
or had AIDS, amounted to direct discrimination. The court held that singling out
individuals based on their HIV status violated their rights to equality and dignity
under Section 9 of the Constitution. This decision reaffirmed the principle that laws or
policies explicitly targeting individuals due to a protected characteristic constitute
direct discrimination.
Indirect Discrimination
Indirect discrimination occurs when a seemingly neutral policy, criterion, or practice
disproportionately affects individuals or groups with particular characteristics, leading
to unequal treatment. A significant case exemplifying indirect discrimination is
Minister of Finance and Another v Van Heerden and Others (2004).3 Here, the
Constitutional Court considered a provision in the South African National Defence
Force Dress Code Policy, which prohibited members from wearing religious apparel.
The court held that while the policy was neutral on its face, it indirectly discriminated
against individuals of certain religious beliefs, such as Muslims and Rastafarians,
1
Constitution of the Republic of South Africa, 1996.
2
Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12.
3
Minister of Finance and Other v Van Heerden (CCT 63/03) [2004].
