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Cathi Albertyn & Beth Goldblatt 251
In this respect, ‘presumptive unfairness would unduly require the
judiciary to second guess the legislature and the executive concerning
the appropriate measures to overcome the effect of unfair
discrimination’. 135 The level of scrutiny of positive measures is
therefore lower than that which applies to unfair discrimination. 136 In
particular, it places less emphasis on the negative impact of the
measure (which would generally be on an advantaged group). The
heart of the enquiry is on the promotional aspects of the measure,
and the group that is to be advanced. 137
If the impugned measure is not saved under FC section 9(2) then
it can be assessed in terms of FC section 9(3). If it fails there, then it
could still (notionally) be justified under FC section 36.
4.3 FC section 9(3) (fairness) and FC section 36
FC sections 9(3) and (4) provide the main substantive protection of
the right by prohibiting unfair discrimination on an open-ended list of
grounds. As discussed above, the test for fairness sets a high standard,
with few cases passing constitutional muster.
The Constitutional Court has not maintained a clear theoretical
distinction between the enquiry into fairness in the unfair
discrimination test set out in FC section 9(3) and the enquiry into
justification in FC section 36. The lines between these two enquiries
become particularly blurred when the impugned conduct does not
arise from a law of general application and the Court is left with no
vehicle for exploring economic and administrative considerations.
In President of the RSA v Hugo, for example, the Court looked at
questions of the state’s administrative capacity and public reactions
to the release of so many prisoners within the enquiry into fairness. 138
This case concerned an exercise of presidential prerogative that was
not found to be a law of general application. 139 Economic
considerations were addressed in Hoffmann v South African Airways.
The case turned on the refusal by South African Airways (an organ of
state) 140 to employ people living with HIV as cabin attendants.
135 Van Heerden (n 31 above) para 33. See also para 152 (Sachs J).
136
Van Heerden (n 31 above) para 34.
137 Van Heerden (n 31 above) paras 78-80 (Mokgoro J).
138 n 4 above, para 46. See the criticism of the majority in the dissenting judgment of
Kriegler J (para 78).
139 Mokgoro J disagreed. She found that the prerogative was a law of general
application and that it justified the unfair discrimination. Hugo (n 4 above) paras
96-104.
140 n 12 above, para 23. SAA was an organ of state in so far as it is a business unit of
Transnet, a statutory body under the control of the state which has public powers
and performs public functions. S Woolman ‘Application’ in S Woolman et al (n 5
above).