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Cathi Albertyn & Beth Goldblatt 241
approach adopted in National Coalition for Gay and Lesbian Equality
arrives at the opposite conclusion. 51
It is likely that these issues will be more contested in the future
as more complicated claims of intersectional or indirect
discrimination are brought to the Court, or where direct
discrimination is alleged against state functionaries or private
individuals, whose behaviour is often covert and less susceptible to
easy proof. 52 It will be interesting to see whether the Court adopts a
substantive or a mechanical test to these issues.
3.2 Grounds of discrimination
Most of the cases that have come to the Constitutional Court have
been decided on the basis of a small number of listed grounds: race,
colour and ethnic origin (Walker, 53 Moseneke, 54 Mabaso 55 and
Zondi 56 ); sex and gender (Brink, 57 Fraser 58 (also marital status),
Hugo, 59 Jordan, 60 Bhe, 61 Volks, 62 Masiya 63 ) and sexual orientation
and marital status (NCGLE v Justice, 64 NCGLE v Home Affairs, 65
Satchwell, 66 Du Toit, 67 J, 68 Fourie, 69 Gory 70 and Harksen 71 ). Equality
challenges have also been raised in three citizenship cases (Larbi-
51 Jordan (n 12 above) paras 59-65.
52
Much of this will not occur under the Constitution, but is more likely to be tested
under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000.
53
n 24 above.
54 n 40 above.
55 Mabaso v Law Society of the Northern Provinces & Another 2005 2 SA 117 (CC),
2005 2 BCLR 129 (CC).
56 n 42 above.
57
n 23 above.
58 Fraser v Children’s Court, Pretoria North & Others 1997 2 SA 218 (CC), 1997 (2)
BCLR 153 (CC).
59
n 4 above.
60 n 12 above.
61 n 17 above.
62
Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
63 Masiya v Director of Public Prosecutions, Pretoria & Another 2007 5 SA 30 (CC),
2007 8 BCLR 827 (CC).
64
n 12 above.
65 n 18 above.
66 Satchwell v President of the RSA & Another 2002 6 SA 1 (CC), 2002 9 BCLR 986
(CC) and Satchwell v President of RSA & Others 2003 4 SA 266 (CC), 2004 1 BCLR 1
(CC).
67 Du Toit & Another v Minister for Welfare and Population Development & Others
2003 2 SA 198 (CC), 2002 10 BCLR 1006 (CC).
68 J & Another v Director-General, Department of Home Affairs & Others 2003 5 SA
621 (CC), 2003 5 BCLR 463 (CC).
69
Minister of Home Affairs & Another v Fourie & Another; Lesbian and Gay Equality
Project & Others v Minister of Home Affairs 2006 1 SA 524 (CC), 2006 3 BCLR 355
(CC).
70
Gory v Kolver NO & Others (Starke & Others intervening) 2007 4 SA 97 (CC).
71 n 9 above. O’Regan J in her minority judgment relied only on marital status.