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Cathi Albertyn & Beth Goldblatt 253
social, economic and political context in which the impugned action
occurs, and on its impact on the complainant.
FC section 36 embraces a different type of enquiry. It measures
the finding of fairness against a range of defences and justifications
offered by the state, within a balancing of rights and values. 146
Despite the failure of the Court to distinguish unfair discrimination
analysis from proportionality analysis, we believe that a relatively
clear distinction between FC section 9(3) and FC section 36 exists. In
particular, questions of resources, administrative capacity or
alternative mechanisms of achieving the same end should only enter
the Court’s enquiry under FC section 36.
In practice, the Court has yet to find an incident of unfair
discrimination in terms of FC section 9 justifiable in terms of FC
section 36. 147 Nevertheless, FC section 36 remains a critical part of
the new constitutional culture of accountability and justification. In
Khosa v Minister of Social Development, 148 the Constitutional Court
found that the denial of social assistance constituted unfair
discrimination that was not justified under FC section 36. In doing so,
it demonstrated that it would carefully scrutinise the justifications
offered by government and measure these against the nature of the
right. Two points stand out. Firstly, the significance that the Court
attached to the right: the denial of social assistance constituted a
total deprivation of ‘what may be essential to enable [the applicants]
to enjoy other rights vested in them in the Constitution’, by
implication finding the nature of the right to be foundational. 149
Secondly, the fact that the discrimination was not justified even
though it would impose an additional cost burden on the state. In
weighing up the government’s financial justifications, the Court found
that although there was no definitive evidence of the cost, the
available evidence revealed that the inclusion of the category of
persons represented by the applicants would not incur more than a
two percent increase over current costs. Given that a seventy percent
146 FC sec 36 reads as follows:
The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including:
(a)the nature of the right;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relation between the limitation and its purpose; and
(e)less restrictive means to achieve the purpose.
147
But see the minority judgment of Ngcobo J in Bhe (n 17 above).
148 n 14 above. In this case the justification enquiry was woven into the overall set of
considerations before the Court. This summary extracts what appears to have
been applicable to the finding that the unfair discrimination was not justified.
149 Khosa (n 14 above) para 77.