8 +equality

CHAPTER 8: EQUALITY
Bongi Maseko
1. INTRODUCTION
‘There is a language particular to the modern state, including its colonial

version. That is the language of law. Legal distinctions are different from all
other in that they are enforced by the state, and then are in turn reproduced by
institutions that structure citizen participation within the state’ 1
Mahmood Mamdani (Citizens & Subject)
Inequality in South Africa during the colonial and apartheid era rested on
socially constructed identities. Arbitrary as one’s skin pigmentation or gender may
be, benign characteristics such as race, gender, ethnicity, or sexual orientation,
remain relevant because they are social identifiers of relationships which are
historically predicated on relationships of inequality.2
The law is an instrument that regulates human behaviour because it

influences and structures the way we interact with the world and others in it. In South
Africa, this regulatory and social function of the law was abused by both the
apartheid and colonial state to construct and label identities to entrench systemic
inequality and discrimination along racial lines. 3 Indeed, the law itself was (ab)used to
create a status of non-citizenship for all but 17% of the nation’s inhabitants. Choices
concerning one’s vocation, who one married, where one lived, went to school or
whether one could acquire property and begin a family – depended on the whims of
the apartheid government’s objectives. The persisting socio-economic inequality
experienced today is undoubtedly a direct consequence of racially discriminatory
legislation and the active role played by the law in enforcing arbitrary distinctions and
1 Mahmood Mamdani Citizens and Subject, (1996) Princeton Press.
2 Anye Nyamjoh ‘The Phenomenology of Rhodes Must Fall: Student Activism and the Experience of Alienation at
the University of Cape Town’, 39(1) (2017) Strategic Review for Southern Africa.
3See Sampie Terreblanche A History of Inequality in South Africa: 1652-2002 (2003) and Brink v Kitshoff NO
1996 (4) SA 197; 1996 (6) BCLR 752 (CC) para 40-1.
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discrimination based on socially constructed identities. The Constitution 4 recognises
that for constitutional democracy to work properly, ongoing patterns of inequality
need to be addressed. This is why the Constitution recognises that equality is an
indispensable component of transformative constitutionalism − one which seeks to
break down these historical barriers to ensure that equality permeates all social
interactions. 5 Equality is also connected to dignity which is set out in section 1(a) of
the Constitution as a foundational constitutional value that influences the
interpretation of all constitutional rights. 6 Section 9 of the Bill of Rights, which
protects the right to equality, reads as follows:
1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
2) Equality includes full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
4) No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (3). National legislation
must be enacted to prevent or prohibit unfair discrimination.
5) Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair
4 Constitution of the Republic of South Africa, 1996 (‘the Constitution’)
5 See Pius Langa ‘Transformative Constitutionalism’ (2006) 17 Stell LR 351 and Minister of Home Affairs v Fourie
[2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) para 60.
6 See James Fowkes ‘Founding Provisions’ in Michael Bishop & Stuart Woolman (eds) Constitutional Law of
South Africa 2 ed (2013) (Revision Service 5) 13:1 and S v Makwanyane 1995 (6) BCLR 665; 1995 (3) SA 391
(CC) para 144 which explains how inherent human dignity affects the interpretation of all constitutional rights.
Also see UDM v President RSA 2003 (1) SA 495; 2002 (11) BCLR 1179 (CC) para 18-9.
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The Constitution demands the achievement of equality by protecting it as a
justiciable constitutional right and foundational value which underpins the nation’s
constitutional democracy. However, the more pressing question is, what does the
constitutional right to equality entail and how should society go about realising it?
This question is unpacked in this chapter which explains what the constitutional right
to equality means and how the courts have interpreted it in practice. First, it begins
by discussing different jurisprudential and philosophical conceptions of what the right
to equality means and should mean. Secondly, it discusses the structure of section 9
of the Constitution, hereinafter referred to as the ‘equality clause’. Finally, it
discusses the Promotion of Equality and Prevention of Unfair Discrimination Act
(‘PEPUDA’) 7 and how it relates to the equality clause in practice.
(1) Formal & Substantive (2) Section 9(1), 9(2) &

Equality 9(3)
Chapter
Structure
(3) PEPUDA (9(4) (4) Revision Questions
7 Act 4 of 2000.
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2. TWO DIFFERENT CONCEPTS OF EQUALITY AND THE
VALUES WHICH INFORM ITS INTERPRETATION
Equality is not easy to define. 8 It is therefore unsurprising that it can mean

different things to different people. To properly understand how the courts have
interpreted the right to equality, it is first necessary to discuss two conceptions of
equality: (a) ‘formal equality’ and (b) ‘substantive equality’. 9 Both variants, and their
implications, are discussed below.
(a) Formal Equality
The essence of formal equality is that ‘people who are similarly situated in
relevant ways should be treated similarly’. 10 Formal equality is often traced back to
the Greek philosopher Aristotle, who in the Niomachean Ethics, defined formal
equality as follows: ‘When two persons have equal status in at least one normatively
relevant aspect, they must be treated equally in this respect’. 11
Formal equality therefore requires that similarly situated people are treated
the same 12 on the basis that people are equal to the extent the law treats similarly
situated people the same way and does not make arbitrary distinctions between
them. 13 Differences in treatment between people are therefore viewed as violations
of the right to equality, such as different treatment according to a redress or
8 See Iain Currie & Johan de Waal The Bill of Rights Handbook 6 ed (2013) 210-11.
9See A Sen Inequality Re-examined (1992) 23-26 and Catherine Albertyn & Beth Goldblatt ‘Equality’ in Michael
Bishop & Stuart Woolman (eds) Constitutional Law of South Africa 2 ed 2013 (Revision Service 5) 35:3-35:8.
10 Currie & de Waal op cit note 8 at 210 explain further that a ‘logical correlative [of formal equality] is the idea
that people who are not similarly situated should be treated dissimilarly’
11 Albertyn and Goldblatt op cit note 9 at 35:12.
12 Currie & de Waal op cit note 8.
13 Ibid
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affirmative action programmes. 14 This means formal equality, for the most part,
simply requires that the law act neutrally between different groups. 15 This has
resulted in some authors arguing that ‘formal equality’ is therefore nothing more than
an extension of the rule of law. 16 This is because, so the argument goes, any law that
treats similarly situated people differently would be irrational, and therefore unlawful,
because it would violate the rule that all public power must be rationally exercised for
a proper and legitimate purpose. 17 However, formal equality does not – and does not
purport to – explain how we should determine when two people/groups are equal in
a ‘normative respect’ or how we should determine when, if ever, it would morally or
legally permissible to distinguish between them’.
This shortfall of formal equality can be illustrated by the following example.

The Minister of Sports introduces new regulations and to regulate chess and rugby in
South Africa. One regulation states that, ‘all registered rugby union players must
undergo concussion testing twice a year to be eligible for Olympic selection’ (you can
assume rugby and chess will represent South Africa at the Olympics). Notice that
this rule does not require chess players to undergo compulsory concussion testing
twice a year to be eligible for Olympic selection. There are two ways someone who
subscribes to formal equality could respond to this scenario: (a) that the rule violates
the right to equality because it treats rugby players and chess players differently or
(b) that the rule does not violate the right to equality because rugby and chess
players are not similarly situated. However, regardless of the position the subscriber
14 See Albertyn & Goldblatt op cit note 9 at 35:7 who explain ‘. . . formal equality cannot tolerate differences:
affirmative action measures are seen as forms of discrimination, rather than as efforts to further a commitment to
equality’. Also see Minister of Finance v van Heerden 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) para
30. The Van Heerden case is discussed in more detail below where section 9(2) of the Constitution is discussed.
15 See Pierre de Vos ‘Equality, Human Dignity and Privacy Rights’ in Pierre de Vos & Warren Freedman (eds)
South African Constitutional Law in Context (2014) 420-2.
16 See Cathi Albertyn ‘Equality’ MH Cheadle, DM Davis & NRL Haysom South African Constitutional Law: The
Bill of Rights (2018) 4:20-4:21 and Currie & de Waal op cit note 8 at 222.
17 See Pharmaceutical Manufacturers Association of SA: in re ex parte President RSA 2000 (2) SA 674; 2000 (3)
BCLR 241 (CC) para 85 and President RSA v SARFU 2000 (1) SA 1; 1999 (10) BCLR 1059 (CC) para 148.
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to formal equality may take, they would find it difficult to rely solely on the doctrine of
formal equality to tell us why rugby and chess players are similarly situated or not.
This is because formal equality cannot speak to whether the criterion applied is itself
objectionable. It therefore tells us little when trying to assess whether the rule is
formally equal or formally unequal. In other words, it does not tell us how it was
determined that two situations/circumstances share normatively relevant attributes.
Formal equality therefore cannot tell us why it is objectionable to treat people
differently based on their gender, class or skin colour. For instance: it cannot tell us
why it is always morally and legally impermissible to treat people belonging to
different races or genders differently, when different treatment is undertaken to
promote socially legitimate ends or how this determination should be made. 18
History demonstrates that such normative value judgements are often guided
by the socio-economic and political environment where a particular legal rule may
find application. 19 For example: if societal institutions create an internalised discourse
that women and men are different in normatively relevant respects (‘that women are
inferior’) that could create a ‘justification’ for treating men and women differently. This
is the central rationale (or ‘justification’) for patriarchy and misogyny. It is the reason
why people were inhumanely denied civil, social, material and political rights
because of the colour of their skin or their sex and gender. Our Constitution
responds to this situation of inequality by introducing variants of formal equality
insofar as it recognises that all people are equal bearers of the rights it protects.
Section 7 of the Constitution recognises this by stating that ‘this Bill of Rights is a
cornerstone of democracy in South Africa. It enshrines the rights of all people in our
country and affirms the democratic values of human dignity, equality and freedom’.
By enshrining the rights of all people in South Africa, the Constitution
18 See Albertyn & Goldblatt op cit note 9 at 35:13-35:15.
19Ibid at 35:3-35:4. For instance, contrast the decision of the United States Supreme Court in Plessy v. Ferguson,
163 U.S. 537 (1896) which concluded that the doctrine of ‘separate but equal’ did not violate the constitutional
right to equality, whilst the same court in Brown v Board of Education 347 U.S. 483 (1954) concluded that the
‘separate but equal’ doctrine was a violation of the constitutional right to equality in overturning Plessy.
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recognises that all its people are all equal bearers of the rights the it enshrines. 20
However, the consistent application and conferring of rights on all people is not the
only thing the Constitution seeks to do. It also recognises that one of its principal
objectives is the achievement of equality, illustrated by section 9(2) of the Bill of
Rights which states that ‘equality also includes the full and equal enjoyment of all
rights and freedoms’ and section 1(a) which states that the ‘achievement of equality’
is a foundational constitutional value. This raises three questions. First, how can the
constitutional objective of (substantive) equality be achieved?) Secondly, how can
we ensure that all people fully and equally enjoy all the rights and freedoms the
Constitution guarantees? Thirdly, what conditions are necessary for every citizen to
enjoy all these ‘rights and freedoms’? Boiled down to its essence, all three questions
require us to ask, ‘equality of what’? 21 The answer to such a complex question
largely depends on the substantive principles that underpin different theoretical
approaches to equality.
(b) Substantive Equality
‘Formal equality’ can be contrasted with the second view of equality known as
‘substantive equality’. 22 Substantive equality is different to formal equality because it
recognises that it may be necessary to treat people differently to ensure that all
people become substantively equal. In other words: ‘substantive equality requires
the law to ensure equality of outcome and is prepared to tolerate different treatment
to achieve this goal’. 23 The Constitutional Court (‘CC’) has unequivocally held that
20 However, as explained in chapter seven, whilst all people benefit from the majority of constitutional rights,
some rights only benefit a narrower and more specific category of beneficiary. However, the right to equality is
not such a right because it is for the benefit of ‘everyone’.
21 See Albertyn op cit note 16 at 4:4-4:5. The phrase ‘equality of what’ was coined by Amartya Sen op cit note 9.
22 See Currie & de Waal op cit note 8 at 213-15.
23Ibid at 213. On the philosophical and legal difference between ‘equality of outcome’ versus ‘equality of
opportunity’, see Cathi Albertyn ‘Substantive Equality and Transformation in South Africa’ (2007) 23 SAJHR 253
and T Loenen ‘The Equality Clause in the South African Constitution: Some Remarks from a Comparative
Perspective’ (1997) 13 SAJHR 401.
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equality must be interpreted in a ‘substantive’ and not a ‘formal way’. 24 This is
because it has unequivocally held that different treatment between groups is not
necessarily a violation (or aberration) of the right to equality. Rather, it is an intrinsic
part of the constitutional objective of achieving true substantive equality. 25 In National
Coalition for Gay and Lesbian Equality v Minister of Justice the court explained this
as follows:
‘Particularly in a country such as South Africa, persons belonging to certain

categories have suffered considerable unfair discrimination in the past. It is
insufficient for the Constitution merely to ensure, through its Bill of Rights, that
statutory provisions which have caused such unfair discrimination in the past
are eliminated. Past unfair discrimination frequently has ongoing negative
consequences, the continuation of which is not halted immediately when the
initial causes thereof are eliminated, and unless remedied, may continue for a
substantial time and even indefinitely. Like justice, equality delayed is equality
denied.’ 26
In Minister of Finance v Van Heerden, the court further explained the meaning
of the constitutional conception of substantive equality:
‘This substantive notion of equality recognises that besides uneven race, class
and gender attributes of our society, there are other levels and forms of social
differentiation and systematic under-privilege, which still persist. The
Constitution enjoins us to dismantle them and to prevent the creation of new
patterns of disadvantage. It is therefore incumbent on courts to scrutinise in
each equality claim the situation of the complainants in society; their history
and vulnerability; the history, nature and purpose of the discriminatory practice
and whether it ameliorates or adds to group disadvantage in real life context,
in order to determine its fairness or otherwise in the light of the values of our
Constitution.’ 27
Aside from the National Coalition and Van Heerden cases, referred to above,
a vast array of case law shows us that the courts have consistently affirmed that the
constitutional right to equality must be interpreted to best promote substantive
24See President RSA v Hugo 1997 (6) BCLR 708; 1997 (4) SA 1 (CC) para 41; National Coalition for Gay and
Lesbian Equality v Minister of Justice 1999 (1) SA 6; 1998 (12) BCLR 1517 (CC) para 60-1; SAPS v Solidarity
obo Barnard 2014 (6) SA 123 (CC); [2014] 11 BLLR 1025 (CC) para 28-35; Bato Star v Minister of Environmental
Affairs 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) para 74. For a further discussion, see Albertyn op cit note
16 at 4:4-4:7.
25 See Barnard ibid and Van Heerden supra note 14.
26 National Coalition supra note 24 at para 60.
27 Van Heerden supra note 14 at para 27.
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equality. 28 The essence of what this all means is that the courts have consistently
accepted that the right to equality does not only entail treating people in a formally
equal way (‘formal equality’) but that it also requires the state – and even private
people 29 – to take steps to ensure all people are substantively equal and that
differential treatment between groups may be necessary to achieve this goal. 30 In
other words: a central objective of the Constitution is to rectify historical patterns of
inequality and ensure the law can respond equally to the needs and interests of all
people subject to it. 31
But how does it purport to do this? In answering this question, constitutional

values which inform the right of equality are of central interpretative assistance.32
This is because, as explained above, several founding constitutional values not only
inform the interpretation of all constitutional rights but are also enforceable rights
themselves. For example: dignity (section 10) and equality (section 9) are founding
constitutional values and rights which influence our understanding of what the right
to equality protects. 33 This requires us to ask the following question: what does the
constitutional right to equality protect in a democratic South Africa? Part of the
answer lies in examining the relationship between the right to equality and the
28 See the authorities cited above at footnote 24.
29 For example: chapter three of the Employment Equity Act 55 of 1998 requires designated employers to
implement affirmative action measures to advance racial and gender diversity in the workplace. Also see the
discussion of the concept of ‘reasonable accommodation’ in Pillay v MEC for Education: KZN 2008 (1) SA 474
(CC); 2008 (2) BCLR 99 (CC) para 72-9.
30 Hugo and National Coalition supra note 24.
31 Van Heerden supra note 14. Also see Stoman v Minister of Safety and Security 2002 (3) SA 468 (T) and the
discussion of this case in Currie & de Waal op cit note 8 at 243.
32 See Fawkes op cit note 6.
33 See Makwanyane supra note 6 and Van Heerden supra note 14 at para 22 (‘Thus the achievement of equality
is not only a guaranteed and justiciable right in our Bill of Rights but also a core and foundational value; a
standard which must inform all law and against which all law must be tested for constitutional consonance’).
316
constitutional values of human dignity and dignity. The relationship between equality
rand these two foundational constitutional values is explained immediately below.
(c) Connection Between the Value of Human Dignity and the Right to
Equality
Until recently – at least in a historical sense – it was assumed that human

beings were inherently unequal on the assumption that there was a natural human
hierarchy which made some people superior to others. The idea of inherent
inequality between human beings has gradually eroded with the development of
human rights discourse and the assumption that equality is the natural order in a
civilised society. 34 This new assumption means that all people – simply by virtue of
been human – have inherent human dignity and moral value worthy of protection.
This has become the point of departure in human rights discourse and South African
constitutional law. 35
Our courts have explicitly endorsed the proposition that the achievement of
equality entails recognising the equal moral worth of all human beings. 36 In
developing case law around the right to equality, courts often flesh out its meaning
by examining its connection with the founding constitutional value of human dignity. 37
This interpretative approach to equality needs to be understood in the context of the
atrocities of apartheid, which stripped the vast majority of people of their personhood
34 See Laurie Ackerman, Human Dignity: Lodestar for Equality in South Africa (2012) who comprehensively
explains the influence of human dignity upon human rights discourse and law.
35 Ibid. For example: Art 1 of the United Nations Universal Declaration of Human Rights states ‘all human beings
are born free and equal in dignity and rights’. See further Dawood v Minister of Home Affairs 2000 (3) SA 936;
2000 (8) BCLR 837 (CC) para 34-5 and Stuart Woolman ‘Dignity’ in Stuart Woolman & Michael Bishop (eds)
Constitutional Law of South Africa 2 ed (2013) Revision Service 5 at 36:1.
36 See van Heerden supra note 14 at para 22 and Satchwell v President RSA 2002 (6) SA 1; 2002 (9) BCLR 986
(CC) para 17.
37See Hugo supra note 24 at para 41 and Harksen v Lane NO 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC) para
50.
317
and intrinsic moral worth. 38 This is because apartheid rested on the premise that the
moral worth of all people was not worthy of equal protection, a premise which
required the apartheid state to reinforce the arbitrary social constructs which it
created. 39 In President RSA v Hugo, the CC explained this fundamental connection
between human dignity and equality in the following words:
‘The prohibition on unfair discrimination seeks not only to avoid discrimination

against people who are members of disadvantaged groups. It seeks more than
that. At the heart of the prohibition of unfair discrimination lies a recognition
that the purpose of our new constitutional and democratic order is the
establishment of a society where all human beings will be accorded equal
dignity and respect regardless of their membership of different groups.’ 40
In SAPS v Solidarity obo Barnard, the CC expanded on the connection

between dignity and equality which it first drew in Hugo, as follows:
‘Our constitutional democracy is founded on explicit values. Chief of these, for

present purposes, are human dignity and the achievement of equality in a non-
racial, non-sexist society under the rule of law. The foremost provision in our
equality guarantee is that everyone is equal before the law and is entitled to
equal protection and benefit of the law. But, unlike other constitutions, ours
was designed to do more than record or confer formal equality.’ 41
Another example of the court drawing express connections between the value
of human dignity and the right to equality comes from Prinsloo v Van der Linde
where it remarked:
‘We are emerging from a period of our history during which the humanity of the
majority of the inhabitants of this country was denied. They were treated as not
having inherent worth; as objects whose identities could be arbitrarily defined
by those in power rather than as persons of infinite worth. In short, they were
denied recognition of their inherent dignity.’ 42
38 Brink
v Kitshoff NO 1996 (4) SA 197; 1992 (6) BCLR 752 (CC) para 33 and 40 and Prinsloo v van der Linde 20
and 31-2.
39 SeeMoseneke v [The] Master of the High Court 2001 (2) BCLR 103; 2001 (2) SA 18 (CC) para 20-22 and Bhe
v Magistrate Khayelitsha 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) para 48-51.
40 Supra note 24 at para 41.
41 Supra note 24.
42 Supra note 38 at para 31.
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(d) Connection Between the Value of Equality and the Right to
Equality
The CC has similarly relied on the founding constitutional value of equality to

determine the meaning (or ‘scope and content’) of the right to equality. 43 In the Van
Heerden case, the Court explained the connection between the value of equality and
the right to equality:
‘The achievement of equality goes to the bedrock of our constitutional

architecture. The Constitution commands us to strive for a society built on the
democratic values of human dignity, the achievement of equality, the
advancement of human rights and freedom. Thus, the achievement of equality
is not only a guaranteed and justiciable right in our Bill of Rights but also a
core and foundational value; a standard which must inform all law and against
which all law must be tested for constitutional consonance.’ 44
In Fraser v Children’s Court, Pretoria North, the CC referred to the preamble

of the Constitution and the constitutional value of equality in remarking that:
‘There can be no doubt that the guarantee of equality lies at the very heart of
the Constitution. It permeates and defines the very ethos upon which the
Constitution is premised. In the very first paragraph of the preamble it is
declared that there is a ‘. . . need to create a new order . . . in which there is
equality between men and women and people of all races so that all citizens
shall be able to enjoy and exercise their fundamental rights and freedoms.’ 45
In Bhe v Magistrate Khayelitsha, the court further explained the intrinsic

interaction between the right to equality and constitutional value of equality:
‘The centrality of equality is underscored by references to it in various

provisions of the Constitution and in many judgments of this Court. Not only is
the achievement of equality one of the founding values of the Constitution,
section 9 of the Constitution also guarantees the achievement of substantive
equality to ensure that the opportunity to enjoy the benefits of an egalitarian
43 See De Vos, P ‘Equality for all? A critical analysis of the equality jurisprudence of the Constitutional Court’
(2000) 63(1) THRHR 65 and Albertyn & Goldblatt op cit note 9 at 35:8-3514.
43 S Cowen ‘Can Dignity Guide our Equality Jurisprudence?’ (2001) 17 SAJHR 34; S Liebenberg ‘The Value of
Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 SAJHR 1.
44 Van Heerden supra note 14 at para 22
45 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC) at para 20
319
and non-sexist society is available to all, including those who have been
subjected to unfair discrimination in the past.’ 46
In practice, the courts have often relied upon the value of the equality when
interpreting the provisions of section 9(2) of the Constitution which concern
restitutionary measures to promote substantive equality ( explained below). 47
Generally, the constitutional value requiring the ‘achievement of equality’ is used to
support a purposive approach of the equality clause which supports the notion of
substantive (and not merely formal) equality. 48 Closely connected to substantive
equality is the freedom of people to live in conditions of material well-being. 49 For this
reason, the constitutional value of equality is also often invoked in the context of
socio-economic rights litigation, 50 because the constitutional commitment to
substantive equality requires the state to take active steps to ensure people have
access to material goods – such as decent housing, education, food, water and
healthcare – necessary for them to meaningfully enjoy all the rights the Constitution
protects in reality. 51 In Van Heerden, the CC touched on this aspect of substantive
equality as follows:
‘What is clear is that the Constitution and in particular section 9 thereof,

embraces for good reason a substantive conception of equality inclusive of
measures to redress existing inequality. Absent a positive commitment
46 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) para 51.
47 See Albertyn op cit note 16 at 4:10-4:12.
48 Ibid. See Bannatyne v Bannatyne 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) para 29 (court considering
disadvantages faced by divorced mothers when interpreting the constitutional right to equality).
49 See S Cowen ‘Can Dignity Guide our Equality Jurisprudence?’ (2001) 17 SAJHR 34 and Soobramoney v MEC
Health: KZN 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) para 8-9.
49 See Sandra Liebenberg ‘The Interpretation of Socio-Economic Rights’ in Stuart Woolman & Michael Bishop
(eds) Constitutional Law of South Africa 2 ed (Revision Service 5) 33:1 and chapter 13.
50 Ibid. See Government RSA v Grootboom 2001 (1) SA 46; 2000 (11) BCLR 1169 (CC) para 1-2 and Khosa v
Minister for Social Development 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) para 42.
51 Grootboom ibid. Also see Bato Star supra note 24 at para 74
320
progressively to eradicate socially constructed barriers to equality and to root
out systematic or institutionalised under-privilege, the constitutional promise of
equality before the law and its equal protection and benefit must, in the context
of our country, ring hollow.’ 52
Having explained the difference between ‘formal’ and ‘substantive’ equality

and how constitutional values of equality and inherent human dignity influence how
courts interpret the equality clause in practice, we can now consider the structure of
equality clause itself.
3. STRUCTURE OF THE CONSTITUTIONAL RIGHT TO

EQUALITY
Structure of Section 9
Differentiation Positive Measures and

Unfair Discrimination
Substantive Redress
(Section 9(1)) (Section 9(3) and 9(4))
(Section 9(2))
(a) Outline of the three main components in the equality clause
As the above diagram above illustrates, the equality clause has three primary
components, the broad objectives of which can be summarised as follows:
1. To prevent the state from differentiating between different people or groups in an

arbitrary or irrational way (section 9(1)).
2. To expressly permit the state to use the law as an instrument to achieve redress
for previously disadvantaged groups to achieve substantive equality (section
9(2)).
52Van Heerden supra note 14 at para 23.
321
3. To expressly prohibit the state, and private persons, from treating people
differently in ways which undermine their human dignity and worth (section 9(3)
and (4)). 53
At a broader level, the constitutional right to equality − like all constitutional

rights − should not be interpreted in isolation from other rights. This is because all
rights in the Bill of Rights are interconnected. 54 For instance: section 10 protects the
right to ‘inherent human dignity’ while section 13 protects the right of everyone not to
be subjected to ‘slavery, servitude or forced labour’. Both constitutional rights are
indivisible and connected because inherent human dignity is violated whenever
someone who is subjected to slavery or forced labour. 55 Similarly, as noted in Hugo,
whenever the right to equality is violated, the constitutional right to human dignity is
also infringed. 56
Thus, the right to equality cannot be properly understood by interpreting each

sub-section (or ‘component’) in isolation from the others. However, whenever a court
is faced with an equality claim it will apply different legal tests depending on which
sub-section or component the applicant bases their equality claim upon. 57 At the
same time, and while different tests apply depending on the nature of the equality
claim, courts have stressed that the equality clause should be interpreted
53 Section 9(5), which creates a rebuttable presumption of ‘unfairness’ − whenever discrimination on a ground
listed in section 9(3) is established − is discussed below. Section 9(4) which prohibits private people from unfairly
discriminating against other private people is considered below where the PEPUDA is discussed.
54 See Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) 53 and Case v
Minister of Safety and Security 1996 (3) SA 617; 1996 (5) BCLR 608 (CC) para 27.
55 See NRL Haysom ‘Slavery, Servitude and Forced Labour’ in MH Cheadle, DM Davis & NRL Haysom South
African Constitutional Law: The Bill of Rights (2018) 8:1.
56 See Hoffmann v SAA 2000 (11) BCLR 1211 ; [2000] 12 BLLR 1365 (CC) para 27.
57 See De Vos op cit note 15 at 429 and Currie & de Waal op cit note 8 at 215.
322
harmoniously. 58 This means one component of the equality clause cannot be
interpreted in isolation from the others or the founding constitutional values of
equality and dignity which inform the overall interpretation. 59 The three different
components of the equality clause can be briefly summarised as follows:
• Section 9(1) recognises that a necessary part of the right to equality is to

prevent the state from acting in ways – or enacting laws – which treat people
differently for arbitrary or capricious reasons. This is because when the state
acts in an arbitrary or capricious way, it acts irrationally which violates the
founding constitutional value of the rule of law. 60 Whenever it is argued that the
state has acted irrationally, it is possible for the applicant to rely on section 9(1)
to challenge that conduct as irrational and unconstitutional. 61
• Section 9(2) recognises that substantive equality requires the state to enact
legislation and take ‘other measures’ to ensure the ongoing effects of past
unfair discrimination are addressed. 62 This section therefore allows the state to
take such measures to promote substantive equality by taking ‘legislative and
other measures’ to advantage people disadvantaged by past unfair
discrimination to ensure substantive equality is achieved. 63 Whenever it is
argued that such a redress measure is unconstitutional, the court must test the
58 See Van Heerden supra note 14 at para 28 where the CC stated that ‘[a] comprehensive understanding of the
Constitution’s conception of equality requires a harmonious reading of the provisions of section 9.’
59 Ibid.
60 Section 1(c) of the Constitution. On the relationship between the rule of law and the requirement of rationality
see Pharmaceutical Manufacturers and SARFU supra note 17.
61 However, as noted by Currie & de Waal op cit note 8 at 219, the development by the CC of the concept of
‘legality’ – sourced in section 1(c) of the Constitution – has rendered section 9(1) somewhat redundant because
all action can be reviewed and set aside as unconstitutional if it does not comply with this requirement. On the
principle of legality generally see Cora Hoexter ‘The Principle of Legality in South African Administrative Law’
(2004) 4 Macquarie Law Journal 164.
62 Van Heerden supra note 14 at para 30-1.
63 Ibid.
323
measure against section 9(2) to determine if that measure passes constitutional
muster. 64
• Section 9(3): prohibits the state from directly or indirectly ‘unfairly
discriminating’ against any person on 16 ‘listed grounds’ of unfair discrimination
or grounds of discrimination which are ‘analogous’ to the 16 listed grounds. 65
When discrimination is established on a ‘listed ground’, the discrimination is
rebuttably presumed to be unfair and unconstitutional. 66 A similar presumption
does not exist for ‘analogous’ grounds. 67 Whenever the state is alleged to have
unfairly discriminated against someone, that person can rely on section 9(3) to
have said discriminatory or conduct law declared invalid. 68
We have now briefly canvassed the different components of the equality

clause in section 9 of the Constitution. Now, we can consider each sub-section in
more detail, together with the tests each one attracts, and how the courts have
interpreted them.
(b) Section 9(1): mere differentiation by the state
Section 9(1) states that ‘everyone is equal before the law and has the right to
equal protection and benefit of the law’. This section is concerned with what is often
referred to as ‘mere differentiations’ made by the state. 69 For modern bureaucracy to
function the state must necessarily make distinctions between different groups and
64 Ibid. See Motala v University of Natal 1995 (3) BCLR 374 (D) (student unsuccessfully challenging affirmative
action for entrance to medical school as unconstitutional).
65 See Hoffmann v SAA supra note 56 at para 27-8 and Khosa supra note 50. Both judgments – and the meaning
and difference between ‘listed’ and ‘analogous’ grounds of discrimination – are discussed below.
66 Harksen supra note 37 at para 49.
67 Ibid.
68 See Currie & de Waal op cit note 8 at 222-3 who explain the difference between ‘fair’ versus’ unfair’
discrimination. This distinction is also discussed further below.
69 See Albertyn & Goldblatt op cit note 9 at 35:26 and Prinsloo supra note 20 at para 17.
324
persons 70 because it would be impossible for modern government to properly
function if it was never permitted to make any distinctions at all. 71 For example, the
state can differentiate between people who earn less income versus people who
earn higher income for tax purposes, or between shop owners who sell tobacco and
alcohol versus vegetables, and the rules which regulates doctors versus those which
regulate lawyers etc. 72 Such a distinction (or ‘mere differentiation’) will be
constitutional and comply with section 9(1), provided it is ‘rational’. 73 In Prinsloo, the
CC summarised the rationality test with which a ‘mere differentiation’ must comply to
be consistent with section 9(1) of the Bill of Rights:
‘In regard to mere differentiation the constitutional state is expected to act in a

rational manner. It should not regulate in an arbitrary manner or manifest
‘naked preferences’ that serve no legitimate governmental purpose, for that
would be inconsistent with the rule of law and the fundamental premises of the
constitutional state. The purpose of this aspect of equality is, therefore, to
ensure that the state is bound to function in a rational manner.’ 74
This dictum affirms that a mere differentiation will not violate the right to equal
protection and benefit of the law under section 9(1) if it is: (a) rational and (b) does
not manifest ‘naked preferences which serve no legitimate government purpose’. 75 In
Harksen v Lane NO, the CC distilled this rationality test into two components: 76
70 Ibid 218.
71 Ibid.
72 See P Hogg Constitutional Law of Canada 3 ed at para 52.6(b) cited in Currie & de Waal ibid and Prinsloo
supra note 20 at para 17.
73 Currie & de Waal ibid.
74 Prinsloo supra note 20 at para 25.
75 Ibid. However, see Currie & de Waal op cit note 9 at 222 who argue that the development of the principle of
legality has rendered much of section 9(1) redundant. On legality generally see Hoexter op cit note 61.
76 Harksen supra note 37 at para 38. See also Albertyn op cit note 16 at 4:14-4:16.
325
1. Does the provision differentiate? This means the applicant must establish that
the challenged provision differentiates between different groups or people. 77 If the
applicant cannot establish any such differentiation, the challenge based on a
violation of section 9(1) must fail. 78 If the applicant establishes a differentiation,
the court considers the next step. 79
2. Is the differentiation rational? This means the applicant must establish the
differentiation bears no rational connection to a legitimate government purpose or
is arbitrary or displays ‘naked preferences’ which serve no legitimate purpose’. 80
If the applicant argues that the differentiation occurs on a listed or ‘analogous’

ground of unfair discrimination in terms of section 9(3), then the court must consider
whether the provision constitutes unfair discrimination – an inquiry which is explained
below. 81 It should be noted that the rationality test into ‘mere differentiation’ does not
permit the court to determine whether the ‘best’ or ‘most appropriate’ means have
been chosen. Its task is limited to determining whether the differentiation seeks to
achieve a legitimate purpose and whether the means chosen to achieve that
purpose are rational. 82 Rationality is also a relatively low threshold which is met in
77 Harksen ibid.
78 Ibid.
79 Ibid.
80 Prinsloo supra note 20 at para 25.
82 See East Zulu Motors v Empangeni/Ngwelezane Transitional Local Council 1998 (1) BCLR 1; 1998 (2) SA 61
(CC) para 24 and Prinsloo supra note 20 at para 35-8.
326
most cases. 83 In Van der Merwe v Road Accident Fund, the CC explained this aspect
of the rationality test as follows: 84
‘[T]he question is not whether the government may have achieved its purposes
more effectively in a different manner, or whether its regulation or conduct
could have been more closely connected to its purpose. The test is simply
whether there is a reason for the differentiation that is rationally connected to a
legitimate government purpose.’ 85
(c) Section 9(2): redress measures to promote substantive equality
Section 9(2) of the Constitution states that, ‘[e]quality includes the full and
equal enjoyment of all rights and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken’. Section
9(2) of the Constitution explicitly recognises that restitution measures for past unfair
discrimination under apartheid and colonial rule are necessary to achieve true
substantive equality. 86 In the Van Heerden case the CC explained the role of section
9(2) as follows:
‘Of course, democratic values and fundamental human rights espoused by our
Constitution are foundational. But just as crucial is the commitment to strive for
a society based on social justice. In this way, our Constitution heralds not only
equal protection of the law and non-discrimination but also the start of a
credible and abiding process of reparation for past exclusion, dispossession,
and indignity within the discipline of our constitutional framework.’ 87
Section 9(2) therefore expressly allows the state to take ‘legislative and other
83 See Ngewu v Post Office Retirement Fund 2013 (4) BCLR 421 (CC) and S v Ntuli 1996 (1) BCLR 141; 1996
(1) SA 120 (CC) where a legislative provision failed to meet the rationality threshold in terms of section 9(1).
84 [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) para 46. Also see Lauren Kohn ‘The
burgeoning constitutional requirement of rationality and the separation of powers: has rationality review gone too
far?’ (2013) 130 SALJ 810.
85See Prinsloo supra note 20 at para 38.
86 Minister of Constitutional Development v South African Restructuring and Insolvency Practitioners Association
2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) para 1-2.
327
measures’ to ‘protect or advance’ people who were ‘disadvantaged by unfair
discrimination’. In terms of the constitutional commitment to substantive equality,
such measures are not aberrations from the overall right to equality (as they would
be under a formal equality approach) but rather part and parcel of the constitutional
right and commitment to substantive equality itself. 88 This means that if the state
differentiates (or ‘discriminates’) against different groups − even based on prohibited
grounds listed in section 9(3) − but if such discrimination properly complies with
section 9(2), the measure will be constitutional. 89 It is only when a restitutionary
measure does not properly comply with section 9(2) that a court will then determine if
the discrimination is ‘unfair’ in terms of the section 9(3) inquiry, explained below. 90 It
is also not necessary for the state to establish that such measures properly comply
with the requirements of section 9(2), because restitutionary measures are
presumed to be valid. 91 Rather the applicant who challenges the measure bears the
onus to establish that it does not comply with section 9(2). 92
In Van Heerden the CC set out three separate requirements which a

restitutionary measure must satisfy in order to comply with section 9(2) of the Bill of
Rights: 93
1. The measure must target groups or categories of persons who have been
disadvantaged by past unfair discrimination. 94
88 Ibid para 73. Also see Walker v Pretoria City Council 1998 (2) SA 363; 1998 (3) BCLR 257 (CC) para 43 where
Langa DJP stated that ‘. . . the ideal of equality will not be achieved if the consequences of those inequalities and
disparities caused by discriminatory laws and practices in the past are not recognised and dealt with.’.
89 Ibid para 33.
90 Ibid para 34.
91 Ibid.
92 Ibid.
93 See De Vos op cit note 15 at 438 who summarises these three factors further.
328
2. The measure must be designed to ‘protect or advance’ groups or categories of
persons who have been disadvantaged by past unfair discrimination. 95
3. The measures must ‘promote the achievement of equality in the long run’. 96
Each of these three elements is explained in more detail immediately below.
(i) Element one: does the measure target persons from a disadvantaged
group?
First, the court must consider whether the group which the measure seeks to
‘protect or advance’ is a group which was ‘previously subjected to unfair
discrimination and [which] continues to suffer from the effects of that
discrimination’. 97 This means that the measure must target a group which suffered
from unfair discrimination in the past. 98 De Vos summarises this requirement and the
different groups which could hypothetically meet this element as follows:
‘The beneficiaries, individuals or categories of persons who belong to an

identifiable [group] defined by their race, sex, gender, disability or sexual
orientation, must have been disadvantaged by unfair discrimination. Because
the test focuses on the group [having] been disadvantaged by past unfair
discrimination, such groups include black (rather than white) citizens, women
(rather than men), gay men and lesbians (rather than heterosexuals); people
living with disabilities (rather than able-bodied people); and people living with
HIV (rather than HIV negative people).’ 99
However, as with any restitutionary measure, there are degrees of

disadvantage within different groups. 100 This broadly means there may be ‘windfall’
95 Ibid para 41.
96 Ibid para 44.
97 De Vos op cit note 15 at 438.
98 Ibid.
99 Ibid 438.
100 See Ockert Dupper ‘Affirmative Action: Who, How and How Long?’ (2008) 3 SAJHR 425 who explains
‘degrees of disadvantage’ within disadvantaged groups.
329
beneficiaries who benefit from the measure, namely people who benefit from the
remedial measure but who are not necessarily disadvantaged or who suffer relatively
less seriously from the impact of the unfair discrimination than other members of the
targeted group.101 In Van Heerden, the CC explained that the existence of ‘windfall
beneficiaries’ did not necessarily mean the remedial measure would not comply with
this first element:
‘. . . it is difficult, impractical or undesirable to devise a legislative scheme with

“pure” differentiation demarcating precisely the affected classes. Within each
class, favoured or otherwise, there may indeed be exceptional or ‘hard cases’
or windfall beneficiaries. That however is not sufficient to undermine the legal
efficacy of the scheme . . . the legal efficacy of the remedial scheme should be
judged by whether an overwhelming majority of members of the favoured class
are persons designated as disadvantaged by unfair exclusion’. 102
Broadly, the above dictum means that provided the remedial measure targets
an ‘overwhelming majority’ of people who belong to a class or group which was
disadvantaged by past unfair discrimination, the remedial measure will comply with
this first element. 103 Windfall beneficiaries will therefore not be excluded from a
remedial measure at this first step, provided the overwhelming majority of
disadvantaged people are targeted.
(ii) Element two: is the measure designed to protect or advance identified

beneficiaries?
Secondly, the court must consider whether the measure is ‘designed to

protect or advance persons or categories of persons’ who have been disadvantaged
by past unfair discrimination. 104 This means the remedial measure must be
‘reasonably capable’ of attaining the outcome’ of ‘advancing or protecting’ the
101 Ibid.
102 Van Heerden supra note 14 at para 39-40.
103 See de Vos op cit note 15 at 438.
104 Ibid para 41.
330
identified beneficiaries. 105 The fact that the measures must be ‘reasonably capable’ of
achieving the goal of protecting or advancing identified beneficiaries means it is not
necessary to establish that they will ‘definitively’ achieve their intended outcome. 106 It
is also not necessary for the remedial measure to disadvantage one group or class
(such as heterosexual white males) to benefit a disadvantaged class or group (such
as HIV positive and disabled lesbian black women) for it to comply with this second
element. 107 However, if the applicant can show that the remedial measure is
‘arbitrary, capricious or displays naked preference’ or is not ‘reasonably capable’ of
achieving its desired end, then the remedial measure will fail to comply with second
requirement in terms of section 9(2). 108
(iii) Element three: will the measure promote equality in the long run?
The third requirement is that the remedial measure must ‘promote the
achievement of equality in the long run’. 109 This requires the court to make a moral
value judgement about whether any harm the measure may cause to the excluded
group is outweighed by the benefits it provides to identified beneficiaries and
realising a ‘non-sexist, non-racial society in which in which each person will be
recognised and treated as a human being of equal worth and dignity’. 110
This element is a necessary part of the inquiry into whether a measure

complies with section 9(2) because such measures may intrude on the rights and
interests of groups and people who are excluded from the benefits of the remedial
105 Ibid para 41.
108 Ibid para 41.
109 Ibid para 44.
110 Ibid.
331
measure. 111 This means that the court should balance the harms and benefits of the
measure to ensure it does not impose ‘substantial and undue harm’ on the groups or
people or people who are excluded from it. 112 In essence: this requires the court to
determine whether the measure strikes an appropriate balance between the
‘possible harm’ caused to individuals by positive measures and the collective benefit
of these measures to society in overcoming past discrimination and disadvantage’. 113
In his concurring judgment in Van Heerden Sachs J explained how this could be
undertaken:
‘Courts must be reluctant to interfere with [remedial measures], and exercise

due restraint when tempted to interpose themselves as arbiters as to whether
the measure could have been proceeded with in a better or less onerous way.
At the same time, if the measure at issue is manifestly overbalanced in
ignoring or trampling on the in the interests of the advantaged [excluded]
section of the community, and gratuitously and flagrantly imposes
disproportionate burdens on them, the courts have a duty to interfere. Given
our historical circumstances and the massive inequality that plagues our
society, the balance when determining whether a measure that promotes
equality is fair will be heavily weighed in favour of opening up opportunities for
the disadvantaged. This is what promoting equality (section 9(2)) and fairness
(section 9(3)) require. Yet some degree of proportionality, based on the
particular context and circumstances of each case, can never be ruled out.’ 114
De Vos argues that a court should consider various open-ended factors to

determine if an appropriate balance is struck, as required by this third element. 115
Relevant circumstances would include:
1. The history of the marginalisation of the benefited group;

2. The oppression of different groups based on ‘race, sex, sexual orientation
and other grounds’;
111 Ibid.
112 Ibid.
113 Ibid.
114 Ibid para 152 cited in full in De Vos op cit note 15 at 441.
115 De Vos ibid at 441-2.
332
3. The ‘current social and economic status of the various groups previously
unfairly discriminated against’;
4. The continuing prevalence of ‘racism, sexism, homophobia and other forms
of misrecognition that are still prevalent in [South African] society’;
5. The ‘effect of the measure on the advantaged section of society’; and
6. ‘Whether the measures taken are so extreme that they send a signal that the
equal dignity’ of the excluded group is ‘not respected.’ 116
Diagram of the three different factors which a redress must have in order
to comply with section 9(2)
116 Ibid.
333
(1) Does the measure
target persons who
belong to a
disadvantaged group?
(3) Does the measure (2) Are the measures

promote the designed to protect or
achievement of advance persons from
substantive equality in a previously
the long run? disadvantaged group?
(d) Section 9(3): Prohibition on unfair discrimination by the state
Section 9(3) of the Constitution prohibits the state from passing any law – or
acting in any way – which directly or indirectly unfairly discriminates against any
person on 16 listed grounds or grounds which are ‘analogous’ to the listed
grounds. 117 Section 9(3) reads:
‘The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.’
The essential purpose of section 9(3) is to prohibit the state from passing
legislation or acting in ways that treat people differently in a manner which negatively
impacts upon their inherent human dignity. 118 Before explaining the test which the
courts use to determine whether section 9(3) has been infringed, it is necessary to
117 The difference between the 16 listed grounds and analogous ground is explained below.
118 See Hugo supra note 24 and Harksen supra note 37 at para 46 and 50.
334
note three important things. First, section 9(3) only prohibits the state from engaging
in ‘unfair discrimination’. 119 This means that section 9(3) permits the state to
discriminate, provided the discrimination is ‘fair’. 120 Secondly every instance of
discrimination (whether fair or unfair) necessarily requires some form of
differentiation between persons or groups. 121 Thirdly, wherever an applicant
establishes that they have been discriminated against on one (or more) of the 16
listed grounds in section 9(3), the discrimination will be rebuttably presumed to be
unfair in terms of section 9(5). 122 All three of these preliminary points will become
clearer as we unpack the test developed by the CC to determine unfair
discrimination, immediately below.
In Harksen v Lane NO, the CC set out a three-part test (‘Harksen test’) to
determine if a law contravenes section 9(3) on the basis that it constitutes ‘unfair
discrimination’: 123
1. The court must determine whether the whether the applicant has established
the existence of a differentiation. 124 If no differentiation is established, the case
119 Currie & de Waal op cit note 8 at 223.
120 Ibid. Intuitively, it may seem strange to permit the state to engage in ‘fair discrimination’. The notion of ‘unfair
discrimination’ was explained by the CC in Prinsloo supra note 20 at para 37 where it stated, ‘given the history of
this country we are of the view that ‘discrimination’ has acquired a particular pejorative meaning relating to the
unequal treatment of people based on attributes and characteristics attaching to them. [U]nfair discrimination,
when used in this second form in section [9(3)], in the context of section [9] as a whole, principally means treating
persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in
dignity’. The concept of ‘fair discrimination’ is explained further below.
121 See Harksen supra note 37 at para 42 and Currie & de Waal ibid at 223.
122 Section 9(5) states that ‘[d]iscrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.’ See Harksen ibid at para 46
123 Harksen supra note 37 at para 42-3.
124 Ibid para 42.
335
must fail. 125 If a differentiation is established, the court must determine if that
differentiation complies with section 9(1) on the basis it rationally seeks to
achieve a legitimate government purpose. 126 If it complies with section 9(1), the
court considers step two. 127
2. The court must determine whether the differentiation constitutes
‘discrimination’. 128 If the differentiation occurs on the basis of one (or more) of
the 16 listed grounds in section 9(3) it is rebuttably presumed to be unfair in
terms of section 9(5) of the Constitution. 129 In this instance, the state bears the
onus to rebut the presumption of ‘unfairness’ by establishing that the
discrimination is ‘fair’. 130 If the differentiation occurs in terms of an ‘analogous
ground’, a ground not listed in section 9(3), the applicant bears the onus to
establish that the differentiation: (a) amounts to discrimination and (b) that the
discrimination it also ‘unfair’. 131 If it is established that the discrimination is
‘unfair’, then the court moves to consider the third step.
3. The court must determine whether the unfair discrimination can be justified as a
permissible violation of section 9(3) in terms of the general limitation clause in
section 36(1). 132 This means the state must establish the unfair discrimination
125 Ibid para 43 where the court stated ‘Differentiation that does not constitute a violation of section 8(1) may
nonetheless constitute unfair discrimination for the purposes of section 8(2) [of the Interim Constitution]’
126 Ibid.
127 Ibid.
128 Ibid para 45.
129 Ibid.
130 Ibid para 47
131 Ibid.
132 Ibid para 52.
336
can be justified as a ‘reasonable and justifiable violation’ of section 9(3) under
section 36(1). 133
(iv) Step one: has the applicant established that the challenged law directly
or indirectly differentiates and that it amounts to discrimination?
This step requires the applicant to show that the challenged law objectively
differentiates against them either directly or indirectly. 134 This step is determined
‘objectively’ because it is not necessary for the applicant to show there was an
‘intention’ to differentiate or discriminate. 135 In other words, the applicant must only
show that a reasonable person would conclude that the challenged provision
differentiates against them.
At this point, it is necessary to discuss the difference between ‘direct’ and

‘indirect’ discrimination. Direct discrimination is when a law expressly differentiates
between different groups or persons ie expressly distinguishes between homosexual
couples and heterosexual couples. 136 Indirect discrimination is when a law is prima
facie neutral and does not expressly draw distinctions between different people or
groups but the law, nevertheless, differentiates between them when it is practically
applied. 137 For example: when a law prohibits all people from wearing headscarves, it
is prima facie neutral, but may nevertheless discriminate against Muslim women who
133 Ibid.
134 Ibid para 47. See Walker supra note 83 at para 43. However, intention to discriminate could be relevant as to
whether the discrimination is ‘unfair’. See Albertyn op cit note 18 at 4:36.
135 Ibid.
136 See National Coalition Gay and Lesbian Equality v Minister Home Affairs 2000 (2) SA 1; 2000 (1) BCLR 39
(CC) (in which it was held that a law which prohibited homosexual couples from marrying constituted direct
discrimination on the listed ground of sexual orientation).
137 Albertyn op cit note 18 at 4:34. See Walker supra note 83 at para 32 and 4. Also consider S v Jordan 2002 (6)
SA 642; 2002 (11) BCLR 1117 (CC) (majority of court concluding that prima facie neutral law which criminalises
prostitution – but not the client – did not constitute indirect discrimination on the basis of sex and gender)
337
wear headscarves as part of their religious beliefs. 138 If such a differentiation is
established, the court considers the next step. 139
(ii) Step two: does the differentiation occur on a ground listed in section
9(3) or an analogous ground and is it fair or unfair?
This step requires the court to determine whether the differentiation

constitutes discrimination and if it occurs on a listed or ‘analogous’ (or unlisted)
ground of discrimination. 140 Similar to the first step, this is considered objectively,
which means the court must determine if a reasonable person would conclude the
differentiation occurs on a listed or analogous ground. 141
It is also necessary to examine the important distinctions between a ‘listed’

versus an ‘analogous’ ground of discrimination. If a differentiation is established
based on one or more of the grounds listed in section 9(3), it automatically
constitutes discrimination and is also rebuttably presumed to be unfair in accordance
with section 9(5). 142 However, the 16 listed ground do not constitute a closed list
which means it is possible to establish discrimination on other grounds. 143 The test to
determine whether differentiation on a ground not listed in section 9(3) constitutes
discrimination is whether it is ‘analogous’ to the listed ground. This means that that
the differentiation has the potential to impact on the fundamental human dignity of the
applicant in a way which is ‘analogous’ to the 16 listed grounds. 144 For example:
138 See Pillay supra note 29 (prima facie neutral school code which prohibited all students from wearing nose
studs indirectly discriminated against the applicant on the basis of religious and cultural beliefs).
140 Ibid.
141 Ibid.
142 Ibid para 47.
143 Hoffmann supra note 56.
144 Ibid.
338
neither HIV positive status or foreign citizenship are listed grounds of discrimination
in section 9(3), but in Hoffmann v SAA 145 and Khosa v Minister of Social Security, 146
the CC concluded that a differentiation based on these grounds was analogous to the
listed grounds because such differentiations had the potential to negatively impact on
the inherent human dignity of both HIV positive people 147 and foreign citizens in South
Africa. 148 Importantly, ‘analogous grounds’ of discrimination do not automatically
constitute discrimination: the applicant bears the onus to show that the differentiation
constitutes discrimination because it adversely affects their human dignity in a
manner analogous to the listed grounds. 149 Secondly, if the applicant establishes that
a differentiation based on an analogous ground constitutes ‘discrimination’, they must
also show that the discrimination is ‘unfair’. 150 This is because analogous grounds of
discrimination do not attract a rebuttable presumption of unfairness in the same way
as listed grounds of discrimination. 151
Once discrimination has been established, either on a listed ground or on an

analogous ground, the court must then consider if the discrimination is also unfair. 152
Remember, if the discrimination was based on a listed ground, the court presumes
the discrimination is unfair. If it was based on an analogous ground, the complainant
must further prove that the discrimination was unfair, and this depends primarily on
145 Ibid.
146 Khosa supra note 50.
148 Khosa supra note 50.
150 Ibid.
151 Ibid.
152 Ibid para 47.
339
how it impacts on the fundamental human dignity of the complainant. 153 In Harksen,
the CC set out three relevant factors a court must consider to determine whether
discrimination is fair or unfair: 154
• The position of the complainants in society, whether the discrimination

occurs on a listed or unlisted ground and whether they have suffered in
the past from unfair discrimination. 155 This group of factors means that if the
applicant belongs to a marginalised group which suffers from prejudice in
society, the discrimination is less likely to be fair. 156If the discriminatory provision
also has a strong stigmatising effect on the affected group, on the basis it sends
a societal message that their inherent human dignity is not worthy of respect,
the discrimination is also likely to be unfair. 157 If the discrimination occurs on a
listed ground constituting the undermining of inherent human dignity of people
who were undermined in the past, the unfairness of the discrimination is likely to
be reinforced. 158
• The nature of the discriminatory provision and purpose sought to be
achieved by it. 159 This requires the court to consider whether the discriminatory
provision seeks to achieve a legitimate purpose and not necessarily undermine
the inherent human dignity of the applicant. 160 If the provision seeks to achieve a
legitimate purpose such as benefiting a poverty stricken group at the expense of
153 Ibid para 50-1.
154 Ibid.
155 Ibid.
156 See Albertyn op cit note 18 at 4:52 and Khosa supra note 55.
157 Khosa ibid.
158 National Coalition supra note 136.
160 Albertyn op cit note 18 at 4:54.
340
a relatively wealth group, it is less likely that the discrimination will be unfair and
violate section 9(3) of the Constitution. 161
• With due regard to the first two factors, any other relevant factors may be
established to determine whether the discrimination impacts on the
fundamental human dignity of the complainant or affects them in a
comparably serious manner. 162 This means that the first two considerations do
not constitute a closed list. The overall inquiry turns on whether the
discrimination negatively impacts on the inherent human dignity of the
complainant. 163 Also relevant is whether he impact of the discrimination on the
human dignity of the complainant is lessened by the use of less restrictive
means to achieve the purpose of the discrimination or whether the state has
made an attempt to reasonably accommodate the discriminated group. 164
(iii) Step three: can the unfair discrimination be justified as a ‘reasonable

and justifiable’ violation of section 9(3) in terms of section 36(1)?
If the existence of unfair discrimination is established, then the challenged

provision will constitute a limitation of the right not to be unfairly discriminated
against by the state under section 9(3). The court must then determine whether the
discrimination can be justified as a permissible violation of the right not to be unfairly
discriminated against in terms of section 36(1) of the Constitution. 165 In practice
however, it can be difficult to justify a limitation of section 9(3) as ‘reasonable and
justifiable’ under section 36(1). Indeed, the CC has never concluded that a limitation
161 See Walker supra note 83 (not unfair discrimination to discriminate against wealthy white suburbs by charging
poor black suburb lower electricity tariffs).
163 Albertyn op cit note 18 at 4:55-4:56.
164 See Pillay supra note 29 and the minority judgment of Sachs J in Prince v President Cape Law Society 2002
(2) SA 794; 2002 (3) BCLR 231 (CC) para 160-3.
341
of section 9(3) constituted a justifiable limitation of the right. 166 Currie and de Waal
explain why it is almost impossible to justify a limitation of section 9(3) of the Bill of
Rights:
‘In the case of the right to equality, it is difficult to apply the usual two-stage
analysis of a right and its limitation. Indeed, it is far from clear whether
section 36 can have any meaningful application to section 9. This is because
the section 9 rights are qualified by the same or similar criteria to those used to
adjudicate the legitimacy of a limitation of rights in section 36. It is, for
instance, difficult to see how discrimination which has already been
characterised as unfair because it is based on attributes or characteristics
which have the potential to impact the fundamental human dignity of persons
as human beings can ever be acceptable in an open and democratic society
based on human dignity equality and freedom’. 167
Diagram showing essentials for redress to comply with section 9(2)
166 See Currie & de Waal op cit note 8 at 218.
167 Ibid. Also see S v K 1997 (9) BCLR 1283 (C) at para 30 where the court suggested a violation of section 9(3)
could never be justified under section 36(1).
342
The position of the
complainant?
Did the discrimination

The nature of the impair fundamental
provision? dignity of the
complainant?
8.4. SECTION 9(4): UNFAIR DISCRIMINATION BY PRIVATE PERSONS IN

TERMS OF PEPUDA
(a) PEPUDA and the principle of constitutional subsidiarity
Section 9(4) extends the prohibition against unfair discrimination in section

9(3) to private persons other than the state. 168This means that section 9(4) also
prohibits private persons – individuals or corporations for example – from unfairly
discriminating against other people. 169 The national legislation which gives effect to
the horizontal application of the right against unfair discrimination – in terms of
section 9(4) – is the Promotion of Equality and Prevention of Unfair Discrimination
Act (‘PEPUDA’). 170 Because the PEPUDA gives effect to the horizontal application of
169 Ibid.
170 Ibid. See Pillay supra note 29 at para
343
the right to equality, the principle of constitutional subsidiarity applies. 171 This means
that a litigant cannot rely on section 9(4) of the Constitution directly, unless the
constitutionality of the PEPUDA is challenged. 172 The preamble of PEPUDA sets out
the purpose of the Act as follows:
‘. . . [to] give substance to the constitutional commitment to equality by

providing a legal mechanism with which to confront, address and remedy past
and present forms of incidental, as well as institutionalised or structural, unfair
discrimination and inequality’.
PEPUDA has two main sections. The first concerns measures to prevent
unfair discrimination (chapters 2 and 3) and the second concerns measures to
promote equality (chapter 5). Additionally, the PEPUDA also contains provisions
aimed at preventing harassment and prohibiting acts of hate speech. This mirrors the
equality jurisprudence developed by the CC around unfair discrimination in terms of
section 9(3) of the Bill of Rights. ‘Discrimination’ is defined in section 1 of PEPUDA
as follows:
‘Any act or omission, including a policy, law, rule, practice,

condition or situation which directly or indirectly:
(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from,
any person on one or more of the prohibited grounds.’
Similar to section 9(3) of the Constitution, section 1 of PEPUDA also lists 19

prohibited (or ‘listed’) grounds of discrimination; and similar to section 9(3), the
PEPUDA definition of ‘discrimination’ also envisages analogous grounds of
discrimination because it refers to ‘any other ground’ indicating that the listed
grounds are not exhaustive. Section 14 follows a similar structure to the Harksen test
which sets out to how to determine the existence of unfair discrimination under the
Act:
171 Pretorius and another v Transport Pension Fund and others 2018 ZACC 10
172 See the minority judgment of Sachs J in Prince supra
344
DETERMINATION OF FAIRNESS OR UNFAIRNESS
(1) It is not unfair discrimination to take measures designed to protect or

advance persons or categories of persons disadvantaged by unfair discrimination or
the members of such groups or categories of persons.
(2) In determining whether the respondent has proved that the discrimination
is fair, the following must be taken into account:
(a) the context;
(b) the factors referred to in subsection (3);
(c) whether the discrimination reasonably and justifiably differentiates

between persons according to objectively determinable criteria, intrinsic to the
activity concerned.
(3) The factors referred to in subsection (2)(b) include the following:
(a)Whether the discrimination impairs or is likely to impair human

dignity;
(b) The impact or likely impact of the discrimination on the complainant;
(c) The position of the complainant in society and whether he or she

suffers from patterns of disadvantage or belongs to a group that suffers from
such patterns of disadvantage;
(d) The nature and extent of the discrimination;
(e) Whether the discrimination is systemic in nature;
(f) Whether the discrimination has a legitimate purpose;
(g) Whether and to what extent the discrimination achieves its purpose;
(h) Whether there are less restrictive and less disadvantageous means
to achieve the purpose;
345
(i) Whether and to what extent the respondent has taken such
steps as being reasonable in the circumstances to-
(i) address the disadvantage which arises from or is related to

one or more of the prohibited grounds; or
(ii) accommodate diversity.
Significantly, PEPUDA expressly introduces the additional requirement of

‘reasonable accommodation’. In MEC for Education: KZN v Pillay 173 the CC had to
determine whether a school code which prohibited a Hindu girl from wearing a nose
ring violated section 9(4) of the Constitution as given effect to by PEPUDA. 174 In
concluding that the refusal of the school to allow her to wear the nose ring violated
PEPUDA, the CC proceeded to define the concept of ‘reasonable accommodation’
under the Act as follows:
‘There may be circumstances where fairness requires a reasonable

accommodation, while in other circumstances it may require more or less, or
something completely different. It will depend on the nature of the case and
the nature of the interests involved. Two factors seem particularly relevant.
First, reasonable accommodation is most appropriate where, as in this case,
discrimination arises from a rule or practice that is neutral on its face and is
designed to serve a valuable purpose, but which nevertheless has a
marginalising effect on certain portions of society. Second, the principle is
particularly appropriate in specific localised contexts, such as an individual
workplace or school, where a reasonable balance between conflicting interests
may more easily be struck. Even where fairness requires a reasonable
accommodation, the other factors listed in the section will always remain
relevant. 175
173 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
174 Pillay supra
175 Pillay para 73.
346
Tabular Summary of Section 9 and PEPUDA
Section Section Section Section

9(1) 9(2) 9(3) 9(4)
Differentiation
or
Differentiation Discrimination Discrimination Discrimination
Discrimination:
(For purposes
of redress)
Source:
Legislative Legislative Legislative Other forms of

conduct other
Provision Provision Provision
than
legislation/statute
Legal Test: Rationality Van Heerden Harksen Test Section 14 of
Test PEPUDA
Example: Legislation Legislation Legislation A school code of
which enacted in the enacted conduct which
differentiates Employment which prohibits the
between
Equity Act, to prohibits men wearing of a
professions (ie
further from receiving nose ring.
differentiating
previously maternity
statutory
disadvantaged leave
regulation for
doctors and
groups
lawyers
respectively)
347
PART IV: REVISION QUESTIONS
(i) TRUE & FALSE QUESTIONS
A) Section 9 of the Constitution prohibits all forms of differentiation on listed or

analogous grounds. (T/F)
B) The test for assessing whether redress measures comply with section 9(2) was
summarised in Minister of Finance and Others v Van Heerden (Van Heerden) as
follows: (i) whether the measure targets a previously disadvantaged group; (ii)
whether the measure is designed to promote or protect that group which has
been identified and (iii) whether the measure promotes equality in the long term.
(T/F)
C) PEPUDA is only applicable to the conduct of private actors, in other words a

challenge to the discriminatory the conduct of public organs may not be subject to
PEPUDA.
D) A litigant may not rely directly on section 9(4) unless they are challenging the
constitutionality of a provision in PEPUDA or the statute in its entirety. This is
based on the principal of subsidiarity.
(ii) SHORT QUESTIONS
(A) Briefly explain which values of the Constitution, have been used to interpret the
right of equality contained in section 9. (5 marks)
(B) Briefly explain the difference between direct and indirect discrimination and
provide examples of each. (4 marks)
348
(iii) LONG/PROBLEM QUESTION
Thabang Molefe is a learner at BrightSparks High School on the outskirts of

Johannesburg. The school was previously a school only attended by students who
would have been classified as ‘white’ under apartheid. As the demographics of the
area began to change so too did the demographics of learners at Thabang’s school.
Now 60% of learners at BrightSparks fall into the category of ‘African’ ie ‘black’. A
teacher at BrightSparks was recently depicted in the news in a video, which went
viral, showing her hysterically screaming at one of her students. The principal of
BrightSparks decides to amend the school’s code of conduct and provide for ‘greater
levels of discipline because the young generation are entitled and disrespectful’. One
of the school’s policies deals with hairstyles and reads as follows:
1. No long hair, dyed/coloured hair, no braids and no dreadlocks.

2. All learners who do not comply with the rule will be barred from representing the
school in all extra-curricular activity.
3. Students may apply for an exemption if the principal is satisfied that the
application is based on grounds which ‘embody the school’s ethos and values’.
You are a candidate attorney at JusticeLeague Attorneys and your principal,

Mr Bruce Wayne, has asked you to prepare a memorandum in which you answer the
following questions (you are also requested to provide case and statutory authority
where applicable):
(i) What section of the Constitution is applicable and is there any governing
legislation giving effect to this section. (1 mark)
(ii) What implications does the principle of subsidiarity have in this set of facts?
(2 marks)
(iii) Explain whether the rule might discriminate directly/indirectly. (3 marks)
(iv) Critically assess Thabang’s chance of successfully challenging BrightSparks

code of conduct. (10 marks)
349
(v) Provide your opinion on whether BrightSparks can successfully argue that they
have reasonably accommodated Thabang, by providing for the exemption.
(4 marks)
Total 20 Marks
QUESTION
1. Define PEPUD
2. Discuss how the rule differentiates and whether this differentiation is

discrimination
3. Discuss the test of fairness in pepuda in conjuction with case law
PART V: ANSWERS
(i) TRUE & FALSE Answers
A) False: see section 9(2); additionally only unfair discrimination is constitutionally

impermissible.
B) True
C) False: Public organs are subject to the requirements of PEPUDA; it is only where
discrimination comes from legislation where the challenge to the discrimination
will have to be established using section 9(3) – in other words PEPUDA only
applies to section 9(4).
D) True
350
(ii) SHORT Answers
A) Equality as a founding value of the Constitution has been invoked to interpret

equality as a right. Our courts have explicitly endorsed the proposition that the
achievement of equality entails the equal recognition of our moral worth as
human beings. Our courts have long discussed the relationship between the
value of dignity and the right to equality. The right to equality entails a recognition
of equal moral and humane worth. Such an approach needs to be understood in
the context of the atrocities of apartheid which stripped its victims of their
personhood and humanity. This is because the law refused to recognise the
moral worth of others based on arbitrary social constructs.
See:
- President of the Republic of South Africa and Another v Hugo

- Social Justice Coalition v Minister of Police and Others
- Prinsloo v Van der Linde and Another
- Hoffmann v South African Airways
B) Direct discrimination occurs where a rule differentiates explicitly on a listed or

analogous ground. For example, direct discrimination can take the form of a rule
differentiating on race, religion or HIV status. Indirect discrimination occurs where
a rule does not differentiate on a listed or analogous ground, but the application
of the rule has the effect of discriminating on a listed or analogous ground. For
example, the minority in S v Jordan and others stated that a rule that criminalised
sex workers offering their services but failed to criminalise those who engaged
the services of sex workers indirectly discriminated against women.
(iii) LONG/PROBLEM QUESTION
i. This provision would be challenged under section 9(4) of the Constitution.
ii. According to the constitutional principal of subsidiarity, a litigant may only rely,
directly on a constitutional right to the extent that (i) the common law or
legislation has not been enacted to give effect to the right or (ii) where the
351
provisions or the entire statute giving effect to right, are challenged on the
basis that they violate the Constitution. Therefore, Thabang will have to rely
on PEPUDA, to challenge the school’s code of conduct (MEC for Education:
KwaZulu-Natal and others v Pillay).
iii. The rule may possibly indirectly discriminate on the grounds of race. Indirect
discrimination occurs where a rule does not differentiate on a listed or
analogous ground, but the application of the rule has the effect of
discriminating on a listed or analogous ground. For example, the minority in S
v Jordan and others stated that a rule which criminalised sex workers offering
their services but failed to criminalise those who engaged the services of sex
workers indirectly discriminated against women.
iv. The rule does not explicitly differentiate on the grounds of race – but the
application of the rule may have disproportionate effects for black learners
because of the way hairstyles historically attributed to black learners have
been targeted. Section 9(3) of the Constitution prohibits discrimination on any
of the 16 listed grounds directly/indirectly. The rule embodies indirect
discrimination because a supposedly ‘neutral differentiating criterion produces
a markedly different impact on a listed ground’ (S v Jordan (minority)).
Question
1. Answer:
Section 1 of the PEPUDA refers to any act or omission, including a policy, law,
rule, practice, condition or situation which directly or indirectly: (i) imposes
burdens, obligations or disadvantage on; or (ii) withholds benefits, opportunities
or advantages from, any person on one or more of the prohibited grounds.
Determining unfair discrimination in relation to PEPUDA requires a two-stage
process in which one first establishes whether there has been discrimination and
thereafter an assessment of whether – if discrimination did occur – the
discrimination in question was fair or unfair. Mirroring section 9 equality
jurisprudence in the Constitution, the focus of a PEPUDA inquiry is predicated on
352
substantive as opposed to formal equality (See Harksen, Hoffmann, National
Coalition for Gays and Lesbians & Prinsloo & Pillay).
2. Define differentiation and its relationship with discrimination. If the differentiation

is on a prohibited ground then it constitutes discrimination and must be dealt with
in accordance with 9(3). If there is no differentiation, that will be the end of the
inquiry. Where differentiation has been found, it must be established that it has
rational connection to a legitimate governmental purpose.
3. (i) Apply the test emanating from Pillay to the facts – it seems unlikely
BrightSpartks have satisfied the test. It will depend on the nature of the case and
the nature of the interests involved. Two factors seem particularly relevant. First,
reasonable accommodation is most appropriate where, as in this case,
discrimination arises from a rule or practice that is neutral on its face and is
designed to serve a valuable purpose, but which nevertheless has a
marginalising effect on certain portions of society. Second, the principle is
particularly appropriate in specific localised contexts, such as an individual
workplace or school, where a reasonable balance between conflicting interests
may more easily be struck. Even where fairness requires a reasonable
accommodation, the other factors listed in section will always remain relevant.
353

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CHAPTER 8: EQUALITY

‘There is a language particular to the modern state, including its colonial

Mahmood Mamdani (Citizens & Subject)

The law is an instrument that regulates human behaviour because it

1 Mahmood Mamdani Citizens and Subject, (1996) Princeton Press.

4 Constitution of the Republic of South Africa, 1996 (‘the Constitution’)

(1) Formal & Substantive (2) Section 9(1), 9(2) &

(3) PEPUDA (9(4) (4) Revision Questions

Equality is not easy to define. 8 It is therefore unsurprising that it can mean

(a) Formal Equality

11 Albertyn and Goldblatt op cit note 9 at 35:12.

12 Currie & de Waal op cit note 8.

This shortfall of formal equality can be illustrated by the following example.

By enshrining the rights of all people in South Africa, the Constitution

18 See Albertyn & Goldblatt op cit note 9 at 35:13-35:15.

(b) Substantive Equality

22 See Currie & de Waal op cit note 8 at 213-15.

‘Particularly in a country such as South Africa, persons belonging to certain

25 See Barnard ibid and Van Heerden supra note 14.

26 National Coalition supra note 24 at para 60.

27 Van Heerden supra note 14 at para 27.

But how does it purport to do this? In answering this question, constitutional

28 See the authorities cited above at footnote 24.

30 Hugo and National Coalition supra note 24.

32 See Fawkes op cit note 6.

Until recently – at least in a historical sense – it was assumed that human

‘The prohibition on unfair discrimination seeks not only to avoid discrimination

In SAPS v Solidarity obo Barnard, the CC expanded on the connection

‘Our constitutional democracy is founded on explicit values. Chief of these, for

40 Supra note 24 at para 41.

41 Supra note 24.

42 Supra note 38 at para 31.

The CC has similarly relied on the founding constitutional value of equality to

‘The achievement of equality goes to the bedrock of our constitutional

In Fraser v Children’s Court, Pretoria North, the CC referred to the preamble

In Bhe v Magistrate Khayelitsha, the court further explained the intrinsic

‘The centrality of equality is underscored by references to it in various

44 Van Heerden supra note 14 at para 22

‘What is clear is that the Constitution and in particular section 9 thereof,

47 See Albertyn op cit note 16 at 4:10-4:12.

51 Grootboom ibid. Also see Bato Star supra note 24 at para 74

Having explained the difference between ‘formal’ and ‘substantive’ equality

3. STRUCTURE OF THE CONSTITUTIONAL RIGHT TO

Differentiation Positive Measures and

(a) Outline of the three main components in the equality clause

1. To prevent the state from differentiating between different people or groups in an

52Van Heerden supra note 14 at para 23.

At a broader level, the constitutional right to equality − like all constitutional

Thus, the right to equality cannot be properly understood by interpreting each

• Section 9(1) recognises that a necessary part of the right to equality is to

62 Van Heerden supra note 14 at para 30-1.

We have now briefly canvassed the different components of the equality

(b) Section 9(1): mere differentiation by the state

66 Harksen supra note 37 at para 49.

‘In regard to mere differentiation the constitutional state is expected to act in a

73 Currie & de Waal ibid.

74 Prinsloo supra note 20 at para 25.

If the applicant argues that the differentiation occurs on a listed or ‘analogous’