Personal tools
You are here: Home Law South African Law Bill of rights Unit 2: The right to Equality e) The Right to Equality - more specific issues

e) The Right to Equality - more specific issues

Document Actions
  • Send this
  • Print this
  • Content View
  • Bookmarks

Corrective action, race, and the right to equality

  • Section 9(2) of South Africa’s 1996 Bill of Rights - which forms part of the equality clause - provides for constitutionally acceptable affirmative action. It is important to note that this section firmly establishes that correctve action is a requirement for real equality and NOT and exception to it. In City Council of Pretoria v Walker 1998(3) BCLR 257 (CC) the Constitutional Court was, in effect, faced with the issue of affirmative action. Langa DP, writing for majority of the Court, applied the test set out in Harksen v Lane. Do you think his approach can be termed a “contextual approach”? Langa distinguishes between the charging of different rates, on the one hand, and the selective prosecution of those who failed to pay their rates. Do you think this distinction was valid or do you agree with the minority decision of Sachs J? What role did South Africa’s particular history play in the outcome of this case? Do you think s 9(2) of the Constitution was pertinent in this case and if so, how would the case have been decided differently in the absence of s 9(2)? In an article referred to in the reading list Saras Jagwanth argues that the majority approach of the Court in the Walker case failed to take into account the fact that differences in society is seldom merely about mere distinctions but about inequality in power. Distinctions are seldom innocent, she seems to suggest. Rather, it carries a history in which some have lost and some have won in the never ending battle for equality. Do you think this view is convincing? What would the outcome of the Walker case have been if the majority of the Court followed the approach favored by the writer? Do you agree with the outcome? Why? Why not?
  • "The respondent does however belong to a racial minority which could, in the political sense, be regarded as vulnerable." - Langa DP in City Council of Pretoria v Walker.
    There was no evidence in this case that the group that did not get the benefit of differential enforcement was, as a group, under- represented on the council, and hence possibly vulnerable to marhinnalisation and disadvantage." - Sachs in Walker
  • Section 9(2) of South Africa’s 1996 Bill of Rights - which forms part of the equality clause - provides for constitutionally acceptable affirmative action. It is important to note that this section firmly establishes that correctve action is a requirement for real equality and NOT and exception to it. In City Council of Pretoria v Walker 1998(3) BCLR 257 (CC) the Constitutional Court was, in effect, faced with the issue of affirmative action. Langa DP, writing for majority of the Court, applied the test set out in Harksen v Lane. Do you think his approach can be termed a “contextual approach”? Langa distinguishes between the charging of different rates, on the one hand, and the selective prosecution of those who failed to pay their rates. Do you think s 9(2) of the Constitution was pertinent in this case and if so, how would the case have been decided differently in the absence of s 9(2)? In an article referred to in the reading list Saras Jagwanth argues that the majority approach of the Court in the Walker case failed to take into account the fact that differences in society is seldom merely about mere distinctions but about inequality in power. 
  •  In Minister of Finance v Van Heerden the Constitutional Court for the first time explicitly dealt with a case in terms of s 9(2) and set out the "test" for affirmative action. Justice Moseneke (for the majority) affirmed that s 9(2) should not be seen as creating an exception to the requirements of equality but rather than it merely affirmed that the state had a positive duty sometimes to take corrective steps to ensure the achievement of the goal of equality. It also affirmned that if the Constitutionality of an "affirmative action" or corrective action programme was attacked, the state would be able to win the case if it could show that the programme met the criteria set out in s 9(2). It would then not be necessary to go to s 9(3) where the state would bear the onus to show that the "discrimination" was not unfair. It was only when a corrective action pro gramme or policy did not meet the criteria set out in s 9(2) that the court would move on to s 9(3) to determine whether the "discrimination" was fair or unfair.
  • "The respondent does however belong to a racial minority which could, in the political sense, be regarded as vulnerable." - Langa DP in City Council of Pretoria v Walker.
    "In assessing whether a measure will in the long term promote equality, we must bear in mind the Constitutional vision [of a non-racial, non-sexist and diverse society]. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long term Constitutional goal will be threatened." - Moseneke J in Ministre of Finance v Van Heerden
    It is important to note the general discussion of Moseneke about the nature of equality and corrective action and too understand the background philosophy of the judgment. It is also important to understand the significance of the decision that s 9(2) can "trump" s 9(3) so that one would not have the prove the fairness of the discrimination if one can show that it was part of a Constitutionally valid affirmative action programme. Do you agree with this approach? Or do you agree with Mogkoro or Sachs who sees the matter in a slightly different light?

     It is also important to note the requirements of s 9(2) as set out by Moseneke from par 36-44. The first requirement (whether the measures target a designated group) is of importance because the minority (per Mokgoro J) disagrees with the majority on the exact nature and scope of this requirement. The second requirement (whether the measures are designed to protect or advance the interest of a designated group) contains an objective test of reason ability. It is important to understand what this means for our testing of affirmative action measures. Is this a strict test or one that is easy to satisfy? The third requirement (whether it promotes the achievement for equality) is of utmost importance as reminds us that in giving effect to affirmative action measures the measures cannot place such a heavy burden on previously advantaged groups that the whole notion of equality and human dignity is subverted. It will, however, be difficult in individual cases to know where to draw the line. Do you think the line was drawn correctly in this case? Why?

    Point to Ponder

    Take a look at the job advertisement reproduced below. Assume that the Labour Relations Act does not apply in this case and that the institution who placed the advertisements is bound by the Bill of Rights in South Africa’s 1996 Constitution. Write an essay in which you develop arguments about whether each of these advertisements will pass a constitutional challenge based on s 9(3) of the Bill of Rights. You must clearly state on which Constitutional ground(s) such a challenge could be launched and whether each advertisement will pass constitutional scrutiny or not. You must give reasons for your arguments based on the legal principles - as developed by the Constitutional Court. You must also indicate whether the limitation clause in s 36 will be applicable in each case and, if so, whether its application would justify the possible limitation on the rights of individuals.


         
     

    ADVERTISEMENT A

    WANTED: An attractive white lady to work as a secretary for a large company who conducts public relations for the Afrikaner Weerstandbeweging (AWB) and the Freedom Front (FF). The successful candidate will have excellent typing skills as well as an excellent command of Afrikaans and English. Phone Tossie at 461221.

     

    ADVERTISEMENT B

    WANTED: An attractive black lady to work as sales representative and demonstration model for a range of cosmetics aimed at African women, called, “Black like me”. The successful candidate must be articulate and fluent in Afrikaans and Xhosa and must be able to work with people from the Xhosa community.

    Copyright 2007-2008, by the Contributing Authors. Cite/attribute Resource. e) The Right to Equality - more specific issues. (2008, July 21). Retrieved April 20, 2014, from UWC Free Courseware Web site: http://freecourseware.uwc.ac.za/freecourseware/law/south-african-law-bill-of-rights/unit-2-the-right-to-equality/unit-4-the-right-to-equality-more-specific-issues. This work is licensed under a Creative Commons License : Attribution-ShareAlike 3.0. Creative Commons License : Attribution-ShareAlike 3.0