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258 Chapter 15
Interestingly, Justice Sachs’ preferred response was to amend the
Harksen test and, in cases of indirect discrimination, to require a
showing of prejudice before a claim of discrimination could be
sustained. The majority view had found discrimination to occur
wherever there was differentiation, either directly or indirectly, on a
listed ground. The net effect of Justice Sachs’ proposal would have
been to place a further hurdle in the path of those seeking an answer
to the question of whether the law or conduct in question amounted
to fair or unfair discrimination. The structure of the right — as
elucidated by the majority — was found to arrive at this substantive
inquiry without the need for Sachs J’s intermediary step.
2.1 Van Heerden — a flexible approach
By way of contrast, the Court in Van Heerden dealt with challenges to
measures aimed at redressing existing inequalities by developing the
concept of substantive equality within the framework of FC section
9(2). 11 In the words of the Court, remedial and restitutionary equality
are integral to the reach of our equality protection. In other words, the
provisions of section 9(1) and section 9(2) are complimentary; both
contribute to the constitutional goal of achieving equality to ensure ‘full
and equal enjoyment of all rights.’ 12
In the USA, the ground or category of differentiation determines the
level of scrutiny to which the conduct or law is subject. These range
from a rational basis test, to an intermediate level of scrutiny and,
finally, to strict scrutiny analysis. The ground or category of
differentiation is often determinative of the outcome of the matter.
We have adopted a more nuanced approach. Categorisations that
do not impact on dignity are dealt with under the mere differentiation
standard or rationality standard of FC section 9(1). Categorisations
that allegedly impair dignity are dealt with through the Harksen test
— and FC sections 9(3) and 9(4). The assessment of remedial and
affirmative action measures are assessed through the criteria laid
down in Van Heerden and its gloss on FC section 9(2). For a
categorisation to amount to a constitutionally permissible affirmative
action measure in terms of FC section 9(2), it must target persons or
categories of persons who have been disadvantaged by unfair
discrimination, be designed to protect or advance such persons and
promote the achievement of equality.
The inherent flexibility of these criteria and the need to be
context and situation sensitive could mean that the rigour and
11
n 2 above, para 31.
12 Van Heerden (n 2 above) para 30.