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THE RIGHT TO EQUALITY.doc - THE RIGHT TO EQUALITY: 1. The...

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THE RIGHT TO EQUALITY:1.The stages of the enquiry:Section 9 of the Constitution contains 5 sections:Sec 9(1) deals with the principle of equality before the law.Further everyone isentitled to the equal protection and benefit of the law.Sec 9(2) provides or affirmative action measures.Sec 9(3) lists 16 grounds on which unfair discrimination will be presumed.Refers tothe state.Sec 9(4) extends the prohibition of unfair discrimination to horizontal levels.Refersto private persons.Sec 9(5) presumes state or private discrimination on the listed grounds in 9(3) to beunfair.InHarksen v Lane No and others1998 (1) SA 300 (CC)(a) Does the provision differentiate between people or categories of people? If so,does the differentiation bear a rational connection to a legitimate government purpose?If it does not then there is a violation of s 9(1). Even if it does bear a rational connection,it might nevertheless amount to discrimination.(b) Does the differentiation amount to unfair discrimination? This requires a two-stageanalysis:(i)Firstly, does the differentiation amount to 'discrimination'? If it is on aspecified ground, then discrimination will have been established. If it is noton a specified ground, then whether or not there is discrimination willdepend upon whether, objectively, the ground is based on attributes andcharacteristics which have the potential to impair the fundamental humandignity of persons as human beings.(ii)If the differentiation amounts to 'discrimination', does it amount to 'unfairdiscrimination'? If it has been found to have been on a specified ground,then unfairness will be presumed. If on an unspecified ground, unfairnesswill have to be established by the complainant. The test of unfairnessfocuses primarily on the impact of the discrimination on the complainantand others in his or her situation.InHarksen v Lanethe CC set down 3 factors which must be considered whendetermining whether the discrimination has an unfair impact:(a)The position of the complainants in society and whether they have suffered in thepast from patterns of disadvantage.(b)The nature of the provision or power and the purpose sought to be achieved byit. If its purpose is not directed, at impairing the complainants but is aimed atachieving a worthy and important societal goal, such as, for example, thefurthering of equality for all, this purpose may, depending on the facts of theparticular case, have a significant bearing on the question whether complainantshave in fact suffered the impairment in question.1
(c)The extent to which the discrimination has affected the rights or interests ofcomplainants and whether it has led to an impairment of their fundamentalhuman dignity or constitutes an impairment of a comparably serious nature.

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