Podcast
Questions and Answers
Which international human-rights instrument includes the right to equality?
Which international human-rights instrument includes the right to equality?
- African Charter on Human and Peoples’ Rights
- International Covenant on Civil and Political Rights
- Universal Declaration of Human Rights (correct)
- International Labour Organisation conventions
In the South African constitutional order, where does equality feature?
In the South African constitutional order, where does equality feature?
- In section 9 of the Constitution
- In section 36(1) of the Constitution
- In section 39(1) of the Constitution
- In the founding provision of the Constitution (correct)
Are people in reality equal?
Are people in reality equal?
- No, people are not equal in any respect (correct)
- Yes, people are equal in practical respects
- No, people are equal in all practical respects
- Yes, people are equal in all respects
Which type of discrimination occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category?
Which type of discrimination occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category?
What is the burden of proof in cases of discrimination on non-listed grounds?
What is the burden of proof in cases of discrimination on non-listed grounds?
What is the purpose of the limitation stage in the inquiry of unfair discrimination?
What is the purpose of the limitation stage in the inquiry of unfair discrimination?
What is the test for equality primarily aimed at preventing?
What is the test for equality primarily aimed at preventing?
What is the reality of inequality?
What is the reality of inequality?
What do individuals strive for, according to the text?
What do individuals strive for, according to the text?
What is equality, according to the text?
What is equality, according to the text?
What is the relationship between equality and the reality of inequality, according to the text?
What is the relationship between equality and the reality of inequality, according to the text?
What does the concept of formal equality mean?
What does the concept of formal equality mean?
What is the focus of substantive equality?
What is the focus of substantive equality?
What does the concept of corrective equality require?
What does the concept of corrective equality require?
Which grounds of unfair discrimination are mentioned in Section 9(3) of the Constitution?
Which grounds of unfair discrimination are mentioned in Section 9(3) of the Constitution?
According to South African constitutional law, discrimination on the grounds listed in subsection (3) is considered unfair unless it is established that the discrimination is fair. This section also includes both formal and substantive equality. What is the purpose of the differentiation measure in order to determine whether it is fair or unfair?
According to South African constitutional law, discrimination on the grounds listed in subsection (3) is considered unfair unless it is established that the discrimination is fair. This section also includes both formal and substantive equality. What is the purpose of the differentiation measure in order to determine whether it is fair or unfair?
In South African constitutional law, what is the significance of the Harksen v Lane case?
In South African constitutional law, what is the significance of the Harksen v Lane case?
According to South African constitutional law, what is the first question that needs to be asked when determining whether there is a violation of the right to equality?
According to South African constitutional law, what is the first question that needs to be asked when determining whether there is a violation of the right to equality?
In South African constitutional law, what is required for discrimination to be considered unfair?
In South African constitutional law, what is required for discrimination to be considered unfair?
Which two aspects formed the basis of minority protection?
Which two aspects formed the basis of minority protection?
What do special arrangements for minority protection imply?
What do special arrangements for minority protection imply?
What was the initially dominant view after World War II regarding minority protection?
What was the initially dominant view after World War II regarding minority protection?
What is the definition of a minority group?
What is the definition of a minority group?
What is the risk faced by minority communities due to their numerical weakness?
What is the risk faced by minority communities due to their numerical weakness?
In which international treaties did the first express protection for minorities appear?
In which international treaties did the first express protection for minorities appear?
What are the two requirements for ensuring true equality between a majority and minority?
What are the two requirements for ensuring true equality between a majority and minority?
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Study Notes
International Human Rights Instruments
- The right to equality is included in various international human rights instruments, such as the Universal Declaration of Human Rights.
Equality in South African Constitutional Order
- Equality features prominently in the South African Constitution, particularly in Section 9, which discusses both formal and substantive equality.
Reality of Equality
- Despite legal provisions, social realities often reflect ongoing inequality among individuals.
Types of Discrimination
- Discrimination that expressly differentiates against certain categories of persons in a detrimental way is known as direct discrimination.
Burden of Proof
- In cases of discrimination on non-listed grounds, the burden of proof typically lies with the complainant to prove unfair discrimination.
Purpose of Limitation Stage
- The limitation stage in inquiries of unfair discrimination aims to assess the justification of the discrimination if it is found to exist.
Test for Equality
- The test for equality primarily seeks to prevent unfair discrimination by promoting equal treatment and opportunities.
Reality of Inequality
- Individuals often struggle against various forms of inequality, impacting social justice and cohesion.
Individual Aspirations
- Individuals strive for recognition, respect, and equality in society.
Definition of Equality
- Equality is defined as having the same rights and opportunities, emphasizing both formal and substantive dimensions.
Relationship Between Equality and Inequality
- There exists a complex relationship between the ideal of equality and the prevailing reality of inequality, where laws may not fully translate into equitable outcomes.
Concepts of Equality
- Formal equality refers to equal treatment under the law without discrimination.
- Substantive equality focuses on achieving equitable outcomes and addressing historical disparities.
- Corrective equality requires measures to rectify past injustices and promote equitable conditions.
Grounds of Unfair Discrimination
- Section 9(3) of the Constitution lists several grounds for which discrimination can be deemed unfair, including race, gender, and disability.
Purpose of Differentiation Measure
- The differentiation measure assesses whether a specific act of differentiation is fair or unfair, weighing its implications and consequences.
Significance of Harksen v Lane Case
- The Harksen v Lane case is significant in clarifying South African constitutional principles regarding equality and unfair discrimination.
Determining Violation of Equality
- The first question in assessing a violation of the right to equality involves identifying whether discrimination exists.
Requirements for Unfair Discrimination
- To be considered unfair, discrimination must not only exist but also fail to meet the criteria for justification or fairness.
Minority Protection
- Minority protection is based on two aspects: acknowledging the specific rights of minorities and ensuring their interests are represented.
Special Arrangements for Minority Protection
- Special arrangements suggest targeted measures to safeguard minority rights, reflecting their unique challenges.
Dominant Views Post-World War II
- After World War II, the dominant view leaned towards the necessity of safeguarding minority rights to prevent oppression.
Definition of a Minority Group
- A minority group is defined by its numerical inferiority in relation to the dominant population, often facing distinct societal challenges.
Risks Faced by Minority Communities
- Minority communities risk marginalization and loss of cultural identity due to their smaller numbers and lack of political power.
International Treaties for Minority Protection
- The first express protections for minorities appeared in international treaties such as the UN Convention on the Elimination of All Forms of Racial Discrimination.
Requirements for True Equality
- Ensuring true equality between majorities and minorities requires legal frameworks that promote inclusion and equitable access to resources.
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