The Right to Equality Flashcards
Formal Equality
- not interventionist - i.e., no positive obligation on the state to intervene/ensure equality is achieved.
- can help to remove discriminatory laws, BUT fails to consider socio-eco context, and so can entrench the status quo of inequality.
- concept of equality is abstract, opportunities are made available, but not everyone has opportunities to grab them.
Substantive Equality
- the root of substantive equality is that sometimes we need to treat people differently in order to achieve equality
- there are competing approaches, which do we prioritise?
Formal Equality of Opportunity OR Equality of Outcomes
Substantive Equality: Formal Equality of Opportunity
spending money to give equal opportunity to everyone, after that they are left to their own devices.
- doesn’t necessarily account for historical element of inequality, looks at fixing the present (and by extension, the future)
(would ideally need to consider the state of the previous generation)
Substantive Equality: Equality of Outcomes
Danger in that if we need targets to be met which it gives to select few, it fails to change and fix the structural inequality in its entirety for the masses when inequality is so broad.
- this can be okay if all we want is representation.
Dignity: the ‘Lodestar’ of South Africa’s equality jurisprudence?
Dignity lies at the heart of the right to equality
Hugo: ‘at the heart of the prohibition of unfair discrimination.. the purpose of our new democratic and constitutional order… all human beings will be accorded equal dignity and respect regardless of their membership of particular groups’
Hoffman: ‘That dignity is impaired when a person is unfairly discriminated against.’
What is instrumental in the Harksen unfair discrimination analysis?
Analogous grounds:
i.e., ‘whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner’
Whether discrimination is unfair – impairment of dignity determinative
What are analogous grounds?
comparable grounds, i.e., grounds not listed in s9(3), but comparably similar.
E.g., Hoffman v SAA, AIDS seen as an analogous ground
How do you approach a case of discrimination?
- State what the neutral thing is
- who is the thing placing a disproportionate burden on?
- 2 step analysis (Harksen) - has there been discrimination? if so, is it unfair?
- use case law for examples of direct/indirect discrimination (Mahlangu, Jordan)
- Consider analogous grounds (Hoffman)
** consider dignity when looking at discrimination grounds
What has the CC said about the meaning of s9(1)?
The meaning of s9(1) is that all persons in a similar position must be afforded the same rights
so it guarantees:
- equal treatment by the courts
- nobody is above or below the law
Constitutional differentiation
can be permissible or impermissible
Permissible Differentiation
Neither irrational nor arbitrary, and doesn’t amount to discrimination
- e.g., tax regimes, different regulatory bodies for different professions
Not all forms of differentiation are constitutionally problematic, moderns states are expected to regulate the actions of citizens - cannot reasonably do that without differentiation to some degree.
Impermissible Differentiation
Irrational, Arbitrary, and Amounts to discrimination.
This is when differentiation will amount to discrimination
- needs to be on a listed or analogous ground (i.e., immutable characteristics of people/groups, or characteristics similar/comparable to them.)
What are the qualities of the test for rationality under s9(1)
The test for rationality is: low threshold and it is difficult to prove that leg/provision is not rationally linked to a legitimate purpose, so most 9(1) claims are likely to fail.
What are the steps of the s9(1) rationality test?
- Does the provision differentiate between people/categories of people?
- ID the legitimate purpose of the differentiation
- Is there a rational link between the purpose and the differentiation?
- even if there is a rational purpose, it can still be discrimination. You can then use s9(3)
** no need for anyone to prove there are better ways of achieving the purpose.
What is the two step analysis process brought to us in Harksen?
S9(5) states that listed grounds are presumed to be cases of unfair discrimination. This is an important step to mention under the 2nd step, and it tells us who bears the onus of proof.
