What is unfair discrimination?

Thesis

In this thesis, I seek to understand ‘unfair discrimination’ under the South African Constitution, as it has been interpreted and applied by the Constitutional Court. The Court holds that unfair discrimination involves differences in treatment that violate human dignity. However, it has not clearly explained what this violation of dignity involves. Without this explanation, its ‘Harksen test’ for unfair discrimination provides little guidance in identifying this wrong.

In response to this lack of explicit guidance, I examine the case law and extract three requirements for establishing the particular type of dignity violation that is required for a finding of unfair discrimination: a) there must be differentiation on the basis of group characteristics; b) that is disproportionate; and c) threatens to create or perpetuate patterns of group disadvantage. Requirements b) and c) are intertwined in important ways. I demonstrate that the Court’s judgments largely turn on a proportionality analysis, as the Court weighs the impact of the discrimination on the disfavoured group against its purpose. Having found that the discrimination is disproportionate, the Court regularly concludes that the law or action expresses impermissible ‘messages’ about the disfavoured group, messages that threaten to create or perpetuate patterns of group disadvantage. Using the literature on ‘legal expressivism’, I examine these messages and conclude that they primarily reflect the concern that the state may be reasonably construed to be acting on the basis of prejudice or impermissible stereotypes.

I then use this understanding of the violation of dignity to explain the key features of the Harksen test. While the Harksen test parcels out this enquiry in a slightly different form, these three requirements form the basis of this two-part test. The result is a clearer understanding of the Court’s jurisprudence and firmer guidance in identifying unfair discrimination.

Authors: McConnachie, C

• Alternative title: A theory of the South African constitutional court's unfair discrimination jurisprudence
• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: Human dignity; Equality; South Africa; Constitutional Court of South Africa; Discrimination
• Subjects: Equality; Constitutional Court of South Africa; Discrimination--Law and legislation