Equality Flashcards
(13 cards)
What is one of the Founding values of the Constitution and it found in section 1?
Equality
Define equality.
A situation which people have the same rights and advantages
What does section 9 of the constitution state?
Everyone is equal before the law and has the right to equal protection and benefit of the law.
What does section 9(4) of the constitution state?
National legislation must be enacted to prevent unfair discrimination.
What is the name of the legislation that was passed to prevent unfair discrimination?
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
1) What type of equality does our law try to achieve?
2) Why?
- Substantive
2. To address past problems even if its favors one group over another.
What is Affirmative Action?
Laws and Policies to advance certain persons who have been disadvantaged by unfair discrimination.
Example of Affirmative Action?
BBBEE Act (Broad-based Black economic Empowerment)
What are the listed Grounds of Discrimination in section 9?
Race, gender, pregnancy, disability, religion, belief, culture etc
Discrimination is unfair when?
When there is different treatment on one or more of the listed grounds and will be presumed to be unfair unless shown it is fair
The Constitutional Court has set out a test for deciding whether the equality clause of the Constitution has been contravened, what is commonly referred to as and why?
Harksen v Lane test, or equality test.
Due to the test being set out in the Harksen v Lane court case.
What are the first two steps?
Is there different treatment of people in law or conduct that is being challenged? If not, there is no discrimination and therefore no inequality
- If there is different treatment of people, is there a rational link between this different treatment and a proper government purpose? If there is no rational link, then the right to equality has been infringed by the law, or by the conduct in question, and the person or group of people will be entitled to some relief
What are the last two steps?
- Even if there is a rational link between the different treatment and a proper government purpose, this might still qualify as discrimination.
If the discrimination is on a listed ground, the unfairness is presumed but the discrimination could still be shown to be fair eg certain affirmative action laws could be shown to be fair
If the discrimination is found to be unfair, a decision has to be made as to whether the unfair discrimination is reasonable and allowed in terms of the limitations clause found in section 36 of the Constitution - Where the discrimination is based on an unlisted ground, it will only amount to discrimination if the ground contains qualities that have the potential to damage a person’s dignity.
Because the ground is unlisted, there is no presumption that the discrimination is unfair
The applicant will therefore have to show that the effect of the discrimination on people like her is unfair
As with a listed ground, if the discrimination is found to be unfair, a decision will have to be
made as to whether or not the unfair discrimination is allowed in terms of the limitations clause
