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254 Chapter 14
increase had been budgeted over the next three years, the cost did
not justify the limitation of the right. 150
Although it is difficult to imagine a case in which unfair
discrimination would be justified, cost might well be the critical
factor when it comes to scarce government resources. Khosa suggests
that the Court will nevertheless demand, and scrutinise,
comprehensive cost justifications by the respondent. This justification
might be the only vehicle by which a court could reach the
paradoxical conclusion that a violation of equality is justified in a
‘democratic society based on ... equality’. 151
150 Khosa (n 14 above) paras 60-62. However, the Court also noted that it would not
be drawn into academic disputes over this issue, and seemed content to rehearse,
briefly, the very same arguments regarding justification as it did for unfair
discrimination.
151
For a comprehensive discussion of the relationship between FC sec 9 and FC sec
36, see S Woolman & H Botha ‘Limitations’ in Woolman et al (n 5 above) Chapter
34 (The authors strongly challenge the notion — articulated here — that any
meaningful analysis can take place under FC sec 36 once unfair discrimination has
been found in terms of FC sec 9.)