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

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(Please note that the following discussion of Harksen v v Lane Lane Lane NO NO 1998 1998 (1) (1) SA SA SA 300
300
(CC) (CC); (CC) 1997 (11) BCLR BCLR 1489 (CC) (CC) is changed from the interim Constitution to the final
Constitution.)
In Harksen v Lane it was decided that the phases with regard to an enquiry into the
violation of section 9 of the Constitution, must occur as follows:
PHASE 1: Does the provision or conduct differentiate
* between people; or
* between categories of people ?
[i] If this provisi provision provisi
on or conduct DOES differentiate as such: such:
such:
Is there a CAUSAL CAUSAL relation between
* the limitation; and
* the purpose of the limitation ?
[ii] If there is NO causal relation: relation:
Then there is differentiation in terms of section 9(1)
of the Constitution.
[iii] If there IS a causal causal relation:
Then there may be differentiation in terms of section 9(1) of
the Constitution.
PHASE 2: [i] Does the differentiation amount to di discrimination
di
scrimination ?
(a) If the differentiation IS based on a listed listed ground ground in section 9(3)
of the Constitution, then there is discrimination
discrimination.
discrimination
(b) If the differentiation is NOT based on a listed ground in section
9(3) of the Constitution, then there is discrimination
discrimination, discrimination
discrimination provided that
this differentiation has the potential
* to impair a person’s human dignity dignity; dignity
or