February 2000

S v Ntuli 1996 (1) SA 1207 (CC)

S v Rens 1996 (1) SA 1218 (CC)

Brink v Kitshoff 1996 (4) SA 197 (CC)

Fraser v The Children's Court, Pretoria North 1997 (2) BCLR 153 (CC)

The President of the RSA and Another v Hugh 1997 (6) BCLR 708 (CC)

Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC)

In the first years of its existence, our Constitutional Court has repeatedly emphasised the primacy of the right to equality. The Court has referred to equality as "our Constitution's focus and organising principle" and "the very ethos upon which the Constitution is premised". The judges have also remarked that equality "lies at the very heart of the Constitution". The particular importance of the right to equality derives from South Africa's history in which inequality pervaded apartheid laws, policies, practices and attitudes. As Justice Kriegler remarked in The President of the RSA and Another v Hugo 1997 (6) BCLR 708 (CC) at 740-1:

"The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre."

This primacy of equality is reflected in numerous textual references in the Constitution. For example, the limitation clause in the interim Constitution provided that all fundamental rights protected in the Bill of Rights may be limited by law which is, inter alia, reasonable and justifiable in an open and democratic society based on freedom and equality. The final Constitution's limitation clause contains similar wording, adding "dignity" to "freedom and equality".

Numerous cases dealing with the right to equality have already come before the Constitutional court. In S v Ntuli 1996 (1) SA 1207 (CC), the court held that the requirement of a judge's certificate prior to an appeal, by an unrepresented, imprisoned accused, against a criminal conviction in a lower court was contrary to the right to equality before the law enshrined in section 8(1) of the interim Constitution. The reason for this finding was that the requirement differentiates between unrepresented prisoners and all other convicted persons who are free or legally represented in their appeals. In another, S v Rens 1996 (1) SA 1218 (CC), the applicant argued that the requirement of leave to appeal in the Supreme Court discriminated between classes of convicted persons as there was no equivalent requirement for an appeal from the Magistrate's Court. The Constitutional Court, however, rejected this argument sating that the principle of equality before the law and equal protection of the law "does not require identical procedures to be followed in respect of appeals from or to different tiers of courts".

In another case Brink v Kitshoff 1996 (4) SA 197 (CC), the court struck down sections 44(1) and (2) of the interim Constitution. The sections in question provided that a wife of an insolvent husband could not receive a benefit under a life insurance policy if it was ceded less than two years prior to the date of sequestration. There was no similar limitation on insurance policies ceded from an insolvent wife to her husband.

Lawrie Fraser also successfully invoked the prohibition against unfair discrimination in challenging a provision of the Child Care Act in the much publicised case of Fraser v The Children's Court, Pretoria North 1997 (2) BCLR 153 (CC). The provision in question requires the consent of both parents prior to the adoption of a legitimate child, but does not require the father's consent for the adoption of his illegitimate child. The Constitutional Court held that this section was inconsistent with section 8(2) of the interim Constitution as it unfairly discriminated against fathers married according to Islamic law whose marriages are not recognised in our law. Mohamed J, for the court, also noted that strong attacks could be made against these provisions on the ground that they unfairly discriminated against fathers of illegitimate children on the basis of their gender and marital status.

Throughout the cases dealing with equality, the Constitutional Court has insisted that the South African courts should develop their own equality jurisprudence and not borrow from and rely extensively on the approaches to equality in foreign jurisdictions, for example, the United States, Canada and India. As Justice O'Regan put it:

"…[S]ection 8 is the product of our own particular history. Perhaps more than any other provision in Chapter 3, its interpretation must be based on the specific language of section 8, as well as our own constitutional context."

It was possibly as a result of this approach that the Constitutional Court, despite deciding numerous cases dealing with equality, seemed hesitant to lay down the analytical and jurisprudential approach that should be taken to section 8. It was not until the simultaneous judgments in Hugo and Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC), that the Court began to law down its thinking on the equality clause. Nevertheless, as the Court stated in Prinsloo:

"This Court should be astute not to lay down sweeping interpretations at this stage but should allow equality doctrine to develop slowly and hopefully, surely."

In Prinsloo the court pointed out that the equality clause distinguishes between two forms of unfair discrimination: discrimination on the specified grounds listed in section 8(2) of the interim Constitution, for example, race, gender, disability and religion; and discrimination on those grounds which are not specified. In relation to the former, section 8(4) provides that prima facie proof of discrimination will create a rebuttable presumption that such discrimination is unfair. An applicant who alleges that he or she is discriminated against on an unspecified ground is not assisted by such a presumption. The position is the same under the final Constitution, with the presumption contained in section 9(5).

In this case, the court also confirmed that a specific meaning must be given to the term "discrimination" in section 8(2), that is, "the unequal treatment of people based on attributes and characteristics attaching to them". The court went further to state that unfair discrimination on an unspecified ground "principally means treating people differently in a way that impairs their fundamental dignity as human beings" or adversely affects them "in a comparably serious manner". In addition, the court indicated that a law which differentiates between persons or categories of persons, but which does not amount to unfair discrimination, will infringe the right to equality if it does not advance a legitimate governmental objective or there is no rational relationship between the differentiation and the governmental objective.

In Prinsloo the court rejected the argument that the presumption of negligence in any action in respect of a veld fire outside a fire control area, created by section 84 of the Forest Act, unfairly discriminated against an owner of land outside a fire control area. The court justified its decision, inter alia, on the basis that differentiation between owners of land in fire control areas and other landowners cannot "by any stretch of the imagination" impair the dignity of an owner of land outside a fire control area.

The requirement of unfairness in discrimination was examined at length by the Constitutional Court in Hugo's case: On 10 May 1994, the day of Nelson Mandela's presidential inauguration, he issued a presidential pardon in terms of which a number of categories of prisoners were released including, inter alia, mothers of children below 12 years of age who had been imprisoned for relatively minor offences. John Hugo, a prisoner and single father of a son below the age of 12, challenged this presidential pardon on the basis that it unfairly discriminated on the basis of sex and gender. In the course of its judgment the court remarked that in evaluating whether discrimination is unfair in the particular circumstances, the courts must have regard primarily to three factors: the nature of the group that is disadvantaged; the nature of the power in terms of which the discrimination was effected; and the nature of the interests affected by the discrimination. As O'Regan J stated:

"There are at least two factors relevant to the determination of unfairness: it is necessary to look at the group or groups which have suffered discrimination in their particular case and at the effect of discrimination on the interests of those concerned. The more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair. Similarly, the more invasive the nature of the discrimination upon the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair."

The court in Hugo held that the presidential pardon did not amount to unfair discrimination. The reasons for this finding included the fact that the persons disadvantaged by the pardon, male prisoners, fell within a group which had not been previously disadvantaged in our society; the pardon did not cause substantial harm to the unreleased fathers' rights as their imprisonment resulted not from the President's act of denying them remission, but from their convictions for criminal offences; and the nature of the presidential pardon is such that certain types of differentiation between classes of persons is often necessary. The differentiation was not unfair as the pardon was tailored to protect the interests of children by the release of their mothers who, generally speaking, play the primary role in child-rearing. Justice Kriegler, the sole voice of dissent, however, held that the presidential pardon did result in unfair discrimination as the view that the primary responsibility for child-rearing rested with women was a generalisation based on social stereotyping which could not be used as a justification for discrimination, except in the most narrow of circumstances.

As a final remark on the right to equality, it should be noted that the Constitutional court has not yet been called upon to decide on the highly contentious issue of affirmative action. It is expected that this issue will form a major portion of our equality jurisprudence as our courts battle to come to terms with the limits of affirmative action in both the public and private sphere.

JOHANN SCHOLTZ AND GLENN PENFOLD

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