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LitNet Akademies Jaargang 9(2), Augustus 2012
gelykheid; regstellende optrede; regstreekse differensiasie; substantiewe gelykheid; tweefase-benadering.
Abstract
Guidelines for the application of the right to equality
In 1997 the constitutional court in Harksen v Lane formulated guidelines for the application
of the right to equality in the Constitution. The purpose of this article is to review the
guidelines after 15 years and to propose certain adaptations.
Guidelines to apply a right must, as far as possible, be formulated in such a way that they are
both readily understandable and well integrated with the other provisions of the bill of rights,
including the general provisions which contain general rules on who the people and
institutions are who benefit from a right, who the people and institutions are who are bound
by the rights and what their duties in respect of the rights are, and how non-compliance with
the duties may be justified in terms of limitation clauses. Measured against these
requirements the Harksen guidelines are deficient in certain respects. It is very difficult to
understand and apply the Harksen guidelines. The guidelines are also not well integrated with
the general provisions of the bill of rights: considerations relating to the requirements for the
limitation of the right in section 9(1) are considered to form part of the definition of the right;
an incomprehensible distinction is made between “discrimination” and “unfair
discrimination”; limitation considerations have been taken into account to such an extent in
defining unfair discrimination that the usefulness of applying the general limitation clause has
been questioned, etcetera. However, the essence of the court’s views on the meaning of
“unfair discrimination”, namely that “unfair” applies to differentiation that impairs human
dignity or that has a similar serious consequence, is sound and should be retained. The test
underlines the offensiveness of unfair discrimination and the ethos of a bill of rights founded
on human dignity. It also provides a clear basis for the distinction between the first phase of a
bill of rights inquiry, during which the factual infringement of a right is determined and the
second phase, during which justification for the infringement within the framework of the
general limitation clause is investigated.
The following adapted guidelines are proposed:
1. Does the provision or action to which the right applies differentiate directly or
indirectly between people?
1.1 As in the case of all other rights it must be determined whether a complainant is
protected by the right. All natural persons are protected and to the extent that the
rights of juristic persons are affected in a way which is so serious that it can be
compared to the violation of human dignity, juristic persons are also protected against
unfair discrimination.
1.2. As in the case of all other rights it must also be determined whether those who
have allegedly violated the right are bound by the right. The right to equality applies
to all law and binds all organs of state. The nature of the right and the duties which it
imposes are such that the right is capable of being applied to private persons and
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