The Judical Officer - Dec 07 - Joasa.org.za

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Albertyn & Kentridge (1994:164-167) is of the opinion that indirect indirect discrimination
occurs
* when an apparent neutral policy is applied, and
* the application of this apparent neutral policy adversely affects a disproportionate
number number of members of a certain group (cf. Van Reenen 1997:159).
For example, a pension scheme is available only to full-time workers. On “face-value”
there is no gender discrimination to distinguish between part-time workers and full-time
workers. But, a DISPROPORTIONATE number of members of a certain group (i.e.
PART PART-time PART time workers workers), workers are women. These women are attempting to combine employment mployment
OUTSIDE OUTSIDE the the house house with childcare childcare. childcare
“Hence a disproportionate number of women are
ineligible for these pension benefits, and these women are therefore victims of indirect
discrimination”(Albertyn & Kentridge 1994:165).
It was said that section 9(3) relates to the vertical vertical vertical application of the Bill of Rights. In
similar vein can it be said that section 9(4) is related to the horizontal horizontal application of
the Bill of Rights.
8.2.4 Section 9(4) [“prohibition of unfair discrimination - horizontal”]
Section 9(4) of the Constitution stipulates that ONE ONE ONE ONE person person person person may NOT unfairly
discriminate directly or indirectly against any OTHER OTHER OTHER OTHER person person person person on one or more of the
listed listed grounds grounds in section 9(3) of the Constitution. National legislation must be enacted
to preve prevent preve
nt or prohibit unfair discrimination [on the horizontal level].
The implication appears to be the following:
Section 9(4) of the Constitution contains the prohibition of unfair discrimination in
terms of the listed grounds grounds with regard to the horizo horizontal horizo
ntal application of the Bill of Rights.