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that the unfairness analysis requires an assessment of the nature of
the provision or power and the purpose sought to be achieved by it, is
that the proportionality analysis, which is the essence of the
limitation clause, is now important in deciding whether the right has
been violated. Based upon the facts of Hugo — which turned on
conduct and not law — the Court was not able to rely on the limitation
clause and hence the concept of ‘unfairness’ was expanded. Section
14 of PEPUDA, in recognition of this difficulty, has further extended
the definition of unfairness to incorporate the limitation clause
enquiry. 19
3.1 Minister of Education v Harris
In Minister of Education v Harris, a regulation increasing the school
admission age to 7 was challenged on the basis that it unfairly
discriminated on the prohibited ground of age against a learner
attending an independent school who was prepared and ready for
school at the age of 6, which was the previous age for admission. 20
The regulation sought to bring the age admission requirements of
private schools in line with that of state schools. From the perspective
of the applicant learner and the independent school that she
attended, there were no sound reasons for not allowing her to start
school when she was ready to do so. Denying her admission would,
according to expert testimony, adversely affect her. The school had
no reason, other than the departmental regulation, for refusing her
admission until she turned 7. As the unfairness enquiry focuses on the
impact of the regulation on the complainant, the Department of
Education in Harris would have had serious difficulties in
demonstrating that the discrimination was fair, even if regard is had
to the objectives of the regulations. 21
Given the circumstances of this case, the national Department of
Education was more likely to justify their regulation under the general
limitation clause than prove that it did not unfairly discriminate
against this particular learner. Having different age admission
requirements in independent and state schools would give learners
from independent schools a distinct advance and accentuate the
differences between the two systems. Thus, under the limitation
19 Whether the inclusion of justification criteria at the fairness stage is good law
was recently questioned by the Constitutional Court in MEC for Education:
KwaZulu-Natal & Others v Pillay 2008 2 BCLR 99 (CC) para 70.
20 Harris v Minister of Education 2001 8 BCLR 796 (T). The Constitutional Court
decided the case without considering the equality question. Minister of Education
v Harris 2001 4 SA 1297 (CC), 2001 11 BCLR 1157 (CC).
21 However, as Stu Woolman notes, one of the myriad problems in Harris was that
the DoE failed to provide any evidence that would justify the discrimination. See
S Woolman ‘Freedom of Association’ in S Woolman et al (eds) Constitutional Law
of South Africa (2nd Edition, OS, 2003) Chapter 44.