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Reply - Karthy Govender 259
robustness with which these criteria are applied will depend upon the
extent to which the right to dignity has been affected by the
categorisation. In all probability, a university rule which, say,
effectively restricts the number of Indian students admitted to a
medical programme 13 will be subject to closer scrutiny to determine
whether FC section 9(2) criteria are satisfied than were the
pensioners in Van Heerden. I would describe the level of scrutiny to
determine whether measures fall within FC section 9(2) as being
flexible — as opposed to being an intermediate standard between the
non-exacting requirements of FC section 9(1) and the more exacting
requirements of FC section 9(3). As pointed out in Van Heerden, if a
measure satisfies the requirements of FC section 9(2), it cannot be
viewed as a form of unfair discrimination. It would be incoherent to
have a measure sanctioned in one section of the Final Constitution
and prohibited in the next.
The ease with which the Court found the criteria satisfied in Van
Heerden had a lot to do with the facts of that particular case. The
striking feature of the facts of Van Heerden is that the differential
pension schemes did not adversely impact on dignity — hence the
looser application of FC section 9(2)’s underlying principles. Had facts
similar to the facts in Motala 14 been at issue — and there was a direct
impact of the affirmative action programme on the dignity of the
complainant — then closer scrutiny would have been warranted. As
Justice Mokgoro’s judgment suggests, all three of FC section 9(2)’s
criteria are capable of being applied more robustly. The extent to
which FC section 9(2) provides a ‘safe harbour’ will depend on the
context and the impact the measure has on the dignity of the
complainant and similarly situated persons.
As the authors correctly point out, Van Heerden not only
embraces the concept of substantive equality, but also encompasses
measures designed to redress existing inequalities and to realise more
egalitarian notions of redistributive justice. A broader notion of
substantive equality will not only enable government to defend
restitutionary measures, but could also be used to compel more
urgent action on the part of government to seek out and eradicate
systemic discrimination that perpetuates past patterns of
disadvantage. Chapter 5 of the Promotion of Equality and Prevention
of Unfair Discrimination (PEPUDA), 15 for example, imposes a duty on
the State to promote substantive equality.
13 See Motala v University of Natal 1995 3 BCLR 374 (D).
14
n 13 above.
15 Act 4 of 2000.