CON LAW

REVISION - CON LAW.
TOPIC 6: EQUALITY, HUMAN DIGNITY AND PRIVACY RIGHTS.
SECTION 38 OF THE CONSTITUTION:

ENFORCEMENT OF RIGHTS: Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights.
WHO ARE THE PEOPLE WHO MAY APPROACH THE COURT?
 Anyone acting in their own interest.
 Anyone acting on behalf of another person who cannot act in their own
name.
 Anyone acting as a member of, or in the interest of, a group or class of
persons
 Anyone acting in the public interest, and
 An association acting in the interest of its members.
SECTION 172 (1) OF THE CONSTITUTION:
POWERS OF COURTS IN CONSTITUTIONAL MATTERS: When deciding a
constitutional matter within its power, a court
 Must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency and
 May make any order that is just and equitable, including: i) an order
limiting the retrospective effect of the declaration of invalidity and ii) an
order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.
NB – an order of constitutional invalidity has no force unless it is confirmed by
the constitutional court.
TOPIC 12 SUMMARY:
The value of dignity is the cornerstone of our constitution. It is a value that
informs the interpretation of many rights, and it unites equality and privacy.
This value of human dignity recognizes the inherent worth of all individuals as
members of our society as well as the value of choices they make. This notion
of human dignity informs the approach taken by the constitutional court in
interpreting and applying the various substantive rights.
THE RIGHT TO EQUALITY AND NON-DISCRIMINATION.

Section 9 guarantees the right to equality. – its aim is the pursuit of substantive
equality.
 The right to equality cannot entail a guarantee that all people should be
treated identically at all times, regardless of their personal attributes or
characteristics, social or economic status.
 The right must guarantee more than just equality before the law and
must focus on the effects or impact of legal rules or other differentiating
treatment on individuals. Its not just a matter of whether two people
have been treated identically by the legal rule. This is captured best by
the idea of SUBSTANTIVE EQUALITY.
FORMAL EQUALITY – focuses on the formal way in which the law treats
individuals or groups. It does not take into account the economic or social
differences. All people should be treated in the same manner regardless of
their economic, social, personal circumstances, their history and whether they
have faced discrimination in the past or if they still face it at present. It is
neutral.
SUBSTANTIVE EQUALITY – is all about context. The focus is on the impact of
the treatment not the treatment itself. It is remedial in nature and aims to
overcome the effects of the past and ongoing discrimination.
DIFFERENTIATION- The constitution does not prevent the law from making
distinctions, treating people differently. Section 9(1) deals with mere
differentiation.
Equality requires more than just equal protection before the law and non-
discrimination, but also the start of a credible and abiding process of
reparation for past exclusion, dispossession, and indignity.
WHEN CHALLENGING DIFFERENT TREATMENT.
 When attacking the constitutionality of a legislative provision – one must
determine which section 9(1), 9(2) or 9(3) will the attack be based on.
This is important because legislation can only be invalidated by invoking
the constitution. This is because the constitution is supreme to
legislation.
 When the attack is directed to the actions of a private entity or public
official, but the attack does not relate to the possible invalidation of
legislation, then PEPUDA can be used. This is because the principle of
subsidiarity requires a litigant who claims one of their constitutional
rights have been infringed must rely on legislation adopted to protect
that right, and not directly on the constitution. In this case PEPUDA
protects the right to equality.
WHEN ARE THE SUBSECTIONS OF SECTION 9 APPLICABLE?
SECTION 9(1):
 Legislative provision constituting mere differentiation. When a legislative
provision differentiates between people or groups of people, but this
differentiation is not based, either directly or indirectly on one of the
listed grounds in s 9(3), or an analogous ground that is similar to the
listed grounds.
 If a litigant can show that the state did not act in a rational manner when
differentiating, then the provision will be inconsistent with s 9(1) of the
constitution. RATIONALITY TEST
 The state is not obligated to prove that the objective could not be
achieved in a different way, as long as the state can show a rational
relationship between the purpose of the provision and the means
chosen by the provision.
SECTION 9(2)
 When the legislative provision explicitly aims to give effect to
restitutionary measures (affirmative action measures).
 The court uses section 9(2) to test legislative provisions that implement
affirmative action measures. If it finds that the measures do not comply
with section 9(2), the court can test their constitutionality against
section 9(3).
 VAN HEERDEN: i) do the measures target persons or categories of
persons who have been disadvantaged by unfair discrimination. ii) are
the measures designed to protect or advance such persons or categories
of persons. Iii) do the measures promote the achievement of equality in
the long term.
 Imposes a positive duty on all organs of the state to protect and
promote the achievement of equality.
 Once the court determines that the measures comply with the
requirements of section 9(2), they cannot be presumed to be unfairly
discriminatory and cannot be tested against section 9(3). If it can be
proven that the measures comply with section 9(2) – it’s a complete
defense, the measures do not unfairly discriminate against anyone.
 When restitutionary measures constitutionality is attacked, the onus
rests on the party alleging the unconstitutionality to prove it.
SECTION 9(3):
 Legislative provision that distinguishes directly or indirectly between
groups based on grounds listed in section 9(3) or analogous grounds
(very similar ground to the listed grounds). Thus, making it
differentiation that amounts to discrimination.
 The different treatment should not form part of an affirmative action
programme or policy. Sometimes the measures aim to give affect to an
affirmative action or remedial programme but do not meet s 9(2)
requirements. In this case the court will use s 9(3) to see if the measures
amount to unfair discrimination. If the discrimination does not comply
with s 9(2) requirements, the court will rely on s 9(3) to determine
whether the discrimination is unfair.
 HARKSEN V LANE:
 1) DOES THE DIFFERENTIATION AMOUNT TO DISCRIMINATION- if the
measure differentiates on one of the 16 listed grounds, then it is
discriminatory. The court can also declare a measure discriminatory if it
differentiates on an analogous ground. ( 1. Does the differentiation
relate to the unequal treatment of people based on other attributes and
characteristics attaching to them, which are comparable to the listed
grounds. 2. Does the differentiation have the effect of treating persons
differently in a way which impairs their fundamental dignity as human
beings).
 2) DOES THE DISCRIMINATION AMOUNT TO UNFAIR DISCRIMINATION –
If the discrimination is on a listed ground in accordance with s 9(5) it is
unfair, but it is possible to rebut this. It is the duty of the other party to
prove that the discrimination is not unfair. If the discrimination is not on
a listed ground then the duty to prove that it is unfair rests on the party
attacking the constitutionality of the measure.1) The position of the
complainants in society, whether they have suffered in past from
patterns of disadvantage, whether the discrimination is on a listed
ground. 2) The nature of the provision or power and the purpose sought
to be achieved by it. 3) to what extent the discrimination has affected
the rights or interests of the complainants and whether it has led to an
impairment of their fundamental human dignity or constitutes an
impairment of a comparably serious nature.
PEPUDA:
 In cases where a litigant alleges that discrimination has occurred on the
basis of the conduct by a public official, organ of state or private
individual or institution. The litigant has to rely on PEPUDA (Promotion
of Equality and Prevention of Unfair Discrimination)
 Section 14 of PEPUDA (deals with the determination of fairness or
unfairness) is applicable when – an act by a private or public body or
person that distinguishes directly or indirectly between groups of people
based on grounds set out in section 9(3) or analogous grounds.
 The enquiry into unfair discrimination set out in the PEPUDA includes
factors normally taken into consideration when dealing with section9 as
well as factors normally taken into account when dealing with section 36
– the limitation clause.
 Section 36, section 9(2) and (3) analysis are all relevant when applying
section 14 of PEPUDA. When determining cases a contextual enquiry is
used.
 When applying the provisions of the PEPUDA, the concept of reasonable
accommodation is important but not always decisive.
THE RIGHT TO HUMAN DIGNITY.

 Dignity is not only a constitutional founding value but it is also an
enforceable right.
 Section 10 of the constitution.
 The right to dignity implies an expectation to be protected from
conditions or treatment which offends an individuals sense of worth in
society
 Human dignity as a value is invoked when it is used to interpret other
rights in the Bill of Rights. It is also a free-standing right.
THE RIGHT TO PRIVACY:

 Section 14 of the constitution.
 Privacy and dignity are closely related. Where a person’s privacy has
been breached, that person will often not be treated with concern and
respect.

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REVISION - CON LAW.

TOPIC 6: EQUALITY, HUMAN DIGNITY AND PRIVACY RIGHTS.

SECTION 38 OF THE CONSTITUTION:

THE RIGHT TO EQUALITY AND NON-DISCRIMINATION.

WHEN ARE THE SUBSECTIONS OF SECTION 9 APPLICABLE?

THE RIGHT TO HUMAN DIGNITY.

THE RIGHT TO PRIVACY:

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