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Cathi Albertyn & Beth Goldblatt 239
The Harksen test was initially followed in quite a formulaic
manner by the Court (Larbi-Odam, 36 Walker, 37 NCGLE v Minister of
Justice). 38 Later, the Court stopped restating the test and began to
take a more sophisticated and integrated approach towards unfair
discrimination determinations (Hoffman, 39 Moseneke, 40 Bhe, 41
Zondi 42 ). The increasing number of FC section 9(3) cases has thrown
up a number of interesting issues. For the purpose of this discussion,
we will look only at some of these issues: first, issues of proof of
discrimination in the first step of the FC section 9(3) test; second, the
use of the listed grounds and the development of new grounds; third,
the application of the contextual approach; and, finally, the use of
fairness.
3.1 Proving discrimination in the first step of the Harksen
test
In South African constitutional jurisprudence, there has been little
dispute over the issue of discrimination: whether there is
differentiation, or whether the differentiation is based on a
prohibited ground. In discrimination law more widely understood (in
both labour law in South Africa and in discrimination claims in other
jurisdictions) these issues have been strongly contested. Although
most claims have concerned overt legislative and executive
distinctions, or clear cases of indirect discrimination on largely
undisputed grounds, the Constitutional Court has confronted a couple
of cases in which these issues have been contested. These cases
provide some clues as to how disputes about discrimination, including
the nature of the causal relationship between the distinction and the
ground, may be addressed.
In Jordan v The State the fact of the legislative distinction was
disputed. Did the provision that criminalised sex work differentiate
between sex worker and client? It was argued by the state that it did
not but rather that it criminalised both sex worker and client. 43 The
majority accepted that there may be a distinction, but found against
the complainant on the relationship of the distinction to the ground.
The minority judgment addressed the criteria for the proper
36
n 19 above.
37 n 24 above.
38 n 12 above.
39
n 12 above.
40 Moseneke & Others v Master of the High Court 2001 2 SA 18 (CC), 2001 2 BCLR
103 (CC).
41
n 17 above.
42 Zondi v MEC for Traditional and Local Government Affairs & Others 2005 3 SA 589
(CC), 2005 4 BCLR 347 (CC).
43
Jordan (n 12 above) paras 8 and 40 (Jordan was decided under sec 8(1) of the
Interim Constitution.)