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LitNet Akademies Jaargang 9(2), Augustus 2012
institutions. Section 9(4) contains an explicit provision in respect of unfair
discrimination – no person may discriminate unfairly.
1.3. In the case of direct differentiation the ground for differentiation is formulated in
the measure. In the case of indirect differentiation (generally known as substantive
inequality) the measure either has a differentiating effect without any reference to any
ground of differentiation in its formulation, or it has a differentiating effect on a
ground which is different from the ground that is referred to in its formulation.
2. If there has been differentiation, what kind of differentiation has occurred – is it
unfair discrimination, differentiation that does not amount to unfair discrimination, or
differentiation in terms of affirmative action?
This step is necessary because different limitation standards apply to different forms
of limitation.
2.1 Unfair discrimination is differentiation that impairs human dignity or has a similar
serious consequence. A similar serious consequence usually involves a very serious
violation of another right.
2.2 When a complainant proves that the differentiation was direct or indirect
differentiation on certain grounds, the respondent must prove that the differentiation
does not impair human dignity or does not have a similar serious consequence. These
grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth. When complainants cannot prove that the differentiation has been
on any of these grounds, they must also prove that the differentiation impairs human
dignity or has a similar serious consequence.
2.3. Differentiation that does not amount to unfair discrimination is a residual
category – it comprises all differentiations that do not comply with the definition of
unfair discrimination as described in 2.2.
2.4. Differentiation ensuing from affirmative action appears in measures designed to
protect and advance persons or categories of persons disadvantaged by unfair
discrimination.
3. Is it possible to justify the unfair discrimination or other forms of differentiation in
terms of the general limitation clause, or, where applicable in the case of affirmative
action, in terms of the provisions of section 9(2)?
3.1. Because the nature and consequences of unfair discrimination are very serious,
the general limitation clause is applied very strictly. In addition to the existence of a
rational relationship between the differentiation and the purpose of the differentiation,
it is required that the differentiation serves a compelling government purpose and that
it is absolutely essential to differentiate in this way in order to achieve the purpose.
The differentiator is afforded no discretion in respect of alternative ways in which to
achieve the purpose.
3.2. Because the nature and consequences of differentiation that does not amount to
unfair discrimination are less serious, the general limitation clause is applied less
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