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252 Chapter 14
However, the judgment suggests that, at least in relation to alleged
unfair discrimination by the state, ‘legitimate commercial requirements’
cannot trump the ‘greater interests of society’.
Legitimate commercial requirements have been deemed an
important consideration. However, the Court has warned against
allowing stereotyping and prejudice to creep in under the guise of
commercial interests. The greater interests of society require the
recognition of the inherent dignity of every human being, and the
elimination of all forms of discrimination. Our Constitution protects
the weak, the marginalised, the socially outcast, and the victims of
prejudice and stereotyping. It is only when these groups are protected
that we, the better off, can be sure that our own rights are
protected. 141
Two conceptions of fairness are thus emerging in the equality
jurisprudence of the Constitutional Court. The first applies when the
unfair discrimination emerges from a law of general application and
retains its ‘purity’ as a moral enquiry. The second applies to other
forms of state action and to unfair discrimination in the private sphere
and seeks to balance moral concerns with more prudential concerns
within the meaning of fairness. 142
4.4 Can unfairness ever be justified?
If discrimination is found to be unfair, the question of justification
arises, 143 but only if it relates to a law of general application. Given
that the determination of inequality inevitably involves questions of
justifying classifications on the basis of rationality 144 or fairness, 145
the Court has not always drawn a clear line between those issues
involved in determining whether the right has been violated and those
issues involved in justifying that violation.
In theory, the enquiry into fairness is largely a moral enquiry that
measures government action against the litmus test of treating
everyone with equal concern and respect and with equal moral or
human worth. The enquiry is also concerned with remedying social
and economic disadvantage. It thus has a particular focus on the
141 Hoffmann (n 12 above) para 34. Economic considerations also formed part of the
fairness enquiry when assessing a redistributive measure in Bel Porto School
Governing Body v The Premier of the Province, Western Cape 2002 3 SA 265 (CC),
2002 9 BCLR 891 (CC) paras 65-68.
142 This idea of fairness is also found in the legislation that seeks to regulate unfair
discrimination: PEPUDA and the Employment Equity Act 55 of 1998.
143 This is the third stage of the test for unfair discrimination set out in Harksen v
Lane (n 9 above) para 38.
144
FC sec 9(1).
145 FC sec 9(3) or (4).