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246 Chapter 14
These decisions point to the possibility that despite the stated
recognition of feminist theories, many of the judges are not able to
apply these in practice or to confront their discomfort with the
implications of this approach. Gender issues seem to test many ideas
around prejudice and stereotyping that seem less complex when seen
through the prism of race. Interestingly, neither of the two women
judges on the Court placed themselves with the majority in Volks and
Jordan. 107
3.3 Unlisted/new grounds of discrimination
FC section 9(3) prohibits unfair discrimination on a list of grounds but
also says ‘including’ before listing these grounds. This term clearly
indicates that the list of grounds is not closed and that other grounds
are possible. The Constitutional Court has acknowledged a range of
unlisted grounds: citizenship, HIV status and marital status (which was
not included in the list of grounds in the Interim Constitution).
3.3.1 Citizenship
The ground of citizenship has been given particular attention in three
Constitutional Court cases. Non-citizens are a classic vulnerable group
who face xenophobia and violence in the battle for scarce resources
in our country. This situation is likely to worsen as the number of
immigrants increase and the desperation of those South Africans
waiting for services grows. The equality right becomes a critical
mechanism for this group to assert its entitlement to the promise of
(most rights in) the Constitution. Both Larbi-Odam 108 and Khosa 109
are positive examples of the Court’s support for non-citizens. In Larbi-
Odam, the Court recognised the ground of citizenship as an additional
ground of unfair discrimination. In Khosa, the majority went quite far
in affirming the rights of the permanent resident applicants. It is
important to note, however, as does Lucy Williams, that courts must
take care not to reinforce hierarchies of entitlement within the group
of non-citizens ie: permanent residents, legal immigrants, refugees
and illegal immigrants, in a way that deepens the vulnerability of the
worst off. 110 In Union of Refugee Women 111 a case that turned on the
rights of refugees to work as security guards, the majority of the
Constitutional Court was less welcoming of this excluded group. 112
107
Jagwanth (n 1 above) and Jagwanth & Murray (n 1 above).
108 n 19 above.
109 n 14 above.
110
L Williams ‘Issues and challenges in addressing poverty and legal rights: A
comparative United States/South Africa analysis’ (2005) 21 South African Journal
on Human Rights 436 468.
111
n 74 above.
112 This case is discussed in more detail in 3.4 below.