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STUDY THEME 5: STRUCTURE OF LITIGATION INVOLVING CONSTITUTIONAL RIGHTS AND LIMITATION 5.1 Litigation involving constitutional rights The theme deals with scenarios where the court will have to rule on the constitutionality or otherwise of a legislative provision. There are basically two situations i...

STUDY THEME 5: STRUCTURE OF LITIGATION INVOLVING CONSTITUTIONAL RIGHTS AND LIMITATION 5.1 Litigation involving constitutional rights The theme deals with scenarios where the court will have to rule on the constitutionality or otherwise of a legislative provision. There are basically two situations in which this might come into play. In the first an applicant alleges that a legislative provision is unconstitutional because it is incompatible with one or more constitutional rights. The applicant in that vases moves for the legislative provision to be ruled invalid owing to it being unconstitutional. The dispute in that case revolves solely on the constitutionality or otherwise of the impugned legislative provision. However, there is also a second situation in which the court is called upon to rule on the constitutionality of legislation. This occurs in the course of civil or criminal litigation. During the course of such litigation one of the parties might raise a constitutional point, arguing that a legislative provision on which one of the parties relies is incompatible with a constitutional right. The section 39(2) option might not be available in this case. Hence it might not be possible to interpret the provision in conformity with the Bill of Rights, that is, in a way (in the words of section 39(2)) that promotes the spirit, purport and objects of the Bill of Rights. Hence, the decide on the constitutional validity of the legislative provision in question. The present theme deals with situations of this kind. 5.2 Structure: two stages Disputes of this kind basically have a two-stage character – the infringement stage and the limitation stage. 5.2.1 First stage: Infringement stage The infringement stage begins when an allegation is made that a provision of legislation violates a constitutional right. In order to carefully define the right that has allegedly been infringed. This stands to reason because it is obviously impossible to determine whether a right has been infringed – and whether the plaintiff/applicant is entitled to the right without knowing precisely what the right provides for. To that end it is important to highlight that some rights are unconditionally defined in contrast to others which are conditionally defined and therefore have their own built-in restrictions. Sections 9, 12 and 18 examples of rights with unqualified definitions. By contrast sections 16, 17, 22, 26, 27 and 30 have qualified definitions, that is, they have their own built-in restrictions. Hence section 16 which provides for the right to freedom of expression, has built-in restrictions in that expression is defined not to include war propaganda, incitement to violence and hate speech. Section 17 provides for the right to 56 assembly, demonstration, picket and petition. However, this right also has its own built in restrictions in that demonstrations, meetings, etc have to be peaceful and unarmed. Armed and non-peaceful demonstrations are not constitutionally protected. They do not fall within the definition of this right. The same obtains for the other rights with qualified (restricted) definitions mentioned above as well as for others, not specifically cited here. Please read though the Bill of Rights and identify the rights with restricted definitions and indicate to yourself what these restrictions entail. The implication of this is that the totality of a rights provision has to be analysed in order to define the right correctly. Particularly relevant in this context is SATAWU v Garvis 2012 (8) BCLR 840 (CC). The case dealt with the Regulation of Gatherings Act, 205 of 1993 in terms of which the organisers of demonstration were held liable for damage caused by the participants in the demonstration. The Act was held not to be unconstitutional since section 17 does not provide for an unrestricted right to demonstrate but only for peaceful and unarmed restrictions. Hence, the Act was perfectly compatible with section 17. The duty of the court regarding the correct definition of the right invokes the need for correct interpretation of the right, while the parties bear the burden of proof as set out as follows in Ferreira v Levin NO 1996 (1) SA 984 (CC) para 44: “The task of interpreting the chap 3 fundamental rights rests, of course, with the Courts, but it is for the applicants to prove the facts upon which they rely for their claim of infringement of the particular right in question. Concerning the second stage, '(it) is for the Legislature, or the party relying on the legislation, to establish this justification (in terms of s 33(1) of the Constitution), and not for the party challenging it to show that it was not justified.” (Chapter 3 refers to the bill of rights in the interim constitution and section 33 to the limitation clause in that constitution.) 5.2.2 Second stage: Limitation Before dealing with limitation under the limitation clause of the South African Constitution we briefly look at limitation in other jurisdictions. There are basically two species of limitation clauses namely internal limitation clauses and general external limitation clauses. In the case of internal limitation clauses each right has its own limitation clause. Such limitation clauses are part of the same section in which the specific right is provided for and sets the criteria for limitation of only that specific right, which differs from the requirements for limitation of other rights each with its own requirements for limitation. The constitutions of Germany, India and Ireland as well as various international human rights conventions such as the Covenant on Civil and Political Rights of 1966 have internal limitation clauses. 57 In the case of a general external limitation clause, all the rights in the Bill of Rights are subjected to the same requirement for limitation. It is general in that it is generally applicable to all the rights in the Bill of Rights and it is external in that it appears in a separate section. We may mention three examples. In Canada section 1 of the Charter of Rights (schedule B to the Constitution of 1982) is the limitation clause and it is applicable to all the rights in the Charter. The position in Kenya is similar. Section 24 of the Kenyan constitution of 2010 is the limitation clause setting out the requirements for limitation of all the Rights in the Kenyan Bill of Rights. The South African constitution also has an external limitation clause, namely section 36, more specifically section 36(1), which sets the requirements for limitation of all the rights in the Bill of Rights. Both internal limitation clauses and an external limitation clause necessitate a two-stage approach. The only difference is that in the case of the former limitation is judged in accordance with the limitation clause of the specific right which has been infringed. In contrast, in the case of the general external limitation clause the criteria for limitation, as we have indicated, are the same for all the rights. The position in the United States is entirely different since the US constitution does not have limitation clauses at all. Their inquiry is conducted in one encompassing stage in which limitation is basically part of the exercise of defining the right. Section 36 Section 36(1) of the Constitution provides as follows: The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. Limitation is raised by the respondent (usually the state) or must be undertaken meru moto by the court. (See in this regard National Coalition of Gay and Lesbian People 1999 (1) SA 6(CC).) Section 36(1) (extra constitutional limitation) On close analysis of section 36(1) and in pursuance of a large number of judgments, there are essentially two requirements for limitation. (1) Law of general application Nothing else but law, that is, ‘n legal provision contained in legislation, common law or customary law, or action taken in terms of such law (usually legislation) may legitimately 58 limit a constitution. A policy, practice, decisions or failure to take action or decisions not, regardless of its merits is not permitted to limit right. See in this regard August v Electoral Commission 1999 (4) BCLR 363 (CC). It is a daily practice that action is taken which is permitted by an empower provision in legislation. We refer here to discretionary powers exercised by organs of state in terms of law. The question is whether that can meet the requirement of law of general application. The short answer is that may be meet this requirement, but only on condition that the way in which the discretion has to be exercised is carefully. If not, the view would be that it is not the law – the legislation – which has limited the right, but (uncontrolled) action which does not meet the requirement of law of general application. Thus it was decided as follows in para 47 in Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC): A law that allows for unconstrained discretionary administrative powers (that could infringe a constitutional right) is not a law of general application. Discretionary powers that could have this effect must be circumscribed in detail. If not, an infringement caused by such action will be regarded as having been actuated by action (conduct) and not law of general application (and therefore unconstitutional). If the limitation proves not to have been actuated by law of general application, this will conclude the inquiry and the limitation will be held unconstitutional. However, if the limitation did in fact follow in consequence, the inquiry will move on to the second question, which relates to reasonability and justifiability. (2) Reasonable and justifiable in an open and democratic society… The second requirement is that the infringing law in order to be constitutional must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the five factors listed in the section. Proportionality analysis / test This is an intricate formulation and it is quite theoretical. The question is what does that mean in practice and how to apply it. The short answer is that this requirement basically entails a so-called proportionality analysis, which is also used in various other jurisdictions. This means that the harm caused by the infringing must be balanced against the benefits accomplished by such infringement. If the harm outweighs the benefits the limitation would be held illegitimate. Conversely, if the benefits outweigh the harm, it would be constitutionally legitimate, and the limitation would be held constitutional. In the normal course of events one would begin with the question whether the purpose of the limiting law is legitimate, that is, whether it is compatible with the values of a society as set out section 36(1). If not, the limitation will not qualify as justifiable and will be held unconstitutional. However, if the purpose is found to be justifiable, the focus shifts to the question whether the means that are employed in order to achieve the purpose are justifiable. 59 In practice the five factors listed in section 36(1) are to be used in order to assess the legitimacy of the reasonability and justifiable of the limiting law. These factors are but considerations and not hard and fast rules. They also do not necessarily carry the same weight. Moreover, they are not a closed list – a numerus clauses. Depending on facts of the case in question there might in fact be additional considerations. On the other hand, once again depending on the circumstances of the case, it might not be necessary to apply all of them. We now proceed to make observations on each of these considerations. We will notice that even this is called the test for reasonability and justifiability, it also covers the issue or rationality and arbitrariness. 1. the nature of the right; The right referred to here is the right that has been infringed. The question relating to the nature of this right pertains to the importance of the right in an open and democratic society as defined in this section, as well as the importance of the right to the person in question in the factual circumstances of the case. 2. the importance of the purpose of the limitation; This is really the first question to be answered in terms in applying the proportionality test. If the respondent (state) cannot show that it serves a legitimate purpose the conclusion would be that it was arbitrary and for that reason clearly unconstitutional. The important purpose is usually a public purpose such as state security, public health, administration of justice and other similar purposes. The purpose may also be to promote the exercise of other rights. 3. the nature and extent of the limitation; This is a factual question pertaining to the specific case. The more invasive the infringement, the less are the chances for justifying it. Conversely, a slight invasion might more readily be justifiable. 4. the relation between the limitation and its purpose; and The question to be asked here is whether the limitation would be factually capable of achieving the purpose? Being a factual question, the answer to this question must be given with reference to evidence. In the final analysis this factor relates to question of rationality. If the evidence shows that the limitation would not be able to achieve the alleged purpose for which it was introduced, the limiting measure will be held irrational and for that reason unconstitutional. The test for rationality represents the minimumstandard of scrutiny and does not really touch on questions of reasonableness. 5. Less restrictive means to achieve the purpose. According to the last consideration the respondent (state) must show that the limiting means it used was in fact less restrictive means to achieve the purpose for which such means utilised. The state should therefore not go any further than what is really 60 objectively necessary to achieve the purpose. Specifically this consideration requires the court also to pass judgment on the policy decisions of the legislature and to 0065ercise a certain amount of judicial activism, although a careful balance must always be struck between judicial activism and judicial deference. See in this regard v Manamela 2000 (5) BCLR 491 (CC) para 96. Section 36(1) has been applied in numerous cases. In fact, it is clearly the most used provision of the entire Constitution. The following cases provide good examples for the way in which it was applied in specific factual scenarios.: • S v Makwanyane 1995 (3) SA 391 (CC) paras 96-104 110-144; • Prince v President Cape Law Society 2002 (2) SA 795 (CC) 128-143; 169-172; • Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC) Paras 25-37; 47-51; 66-67; • Print Media SA v Minister of Home Affairs 2012 (12) BCLR 1346 (CC) • and Gaertner v Minister of Finance 2014(1) BCLR 38 (CC) (The latter two judgments offer a useful recent demonstration of the application of the second requirement of section 36(1). If once it is found that legislation or conduct is arbitrary (for example at variance with section 25(1), there is hardly room to hold it justifiable in terms of section 36(1) (which includes that test for non-arbitrariness.) - National Credit Registrar v Oppermann 2013 (2) BCLR 170 (CC) para 73. Section 36(2) (Intra constitutional limitation) Apart from the kind of limitation we have just dealt with, there is actually a second, much less prominent and used form of limitation. This is provided in section 36(2) which reads as follows. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. What we have here is a scenario where the limitation of a constitutional right emanates not from a law (of general application) from outside the Constitution as envisaged in section 36(1), but from provisions inside the Constitution itself. This is why we refer to it as intra constitutional limitation, which indicates that limitation in this case originates from inside the Constitution itself. This stands in contrast with section 36(1), which we have just discussed and which regulates scenarios of extra-constitutional limitation, thus called to indicate that in that case the provision in fact originates from law – usually legislative provision – which is obviously outside the Constitution. Example of limitations provided for in any other provision of the Constitution (to use the wording of section 36(2), are section 47, 62, 106 and 158 of the Constitution all of which in some way or the other place limitations of the constitutional right of every citizen to stand for public office and, if elected, to hold office, as contemplated in section 19(3)(b). We use section 47 as our example. It provides as follows: 61 (1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except(a) anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than(i) the President, Deputy President, Ministers and Deputy Ministers; and (ii) other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation; (b) permanent delegates to the National Council of Provinces or members of a provincial legislature or a Municipal Council; (c) rehabilitated insolvents; (d) anyone declared to be of unsound mind by a court of the Republic; or (e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed. (2) A person who is not eligible to be a member of the National Assembly in terms of subsection (1) (a) or (b) may be a candidate for the Assembly, subject to any limits or conditions established by national legislation. It is clear that this section places a number of restrictions on section 19(3)(b). None of them would be unconstitutional, however. They are constitutional not because they meet the requirements for limitation set out in section 36(1), because we are not dealing here with an extra constitutional limitation, that is, a limitation originating from outside the Constitution. They are unconstitutional solely on account of the fact that being limitations from inside the constitutional text itself, they are constitutional in accordance with section 36(2). The locus classical for this form of limitation is AZAPO v President of the RSA 1996 (8) BCLR 1015 (CC). If the court finds that a constitutional right was in fact violated and that the violation is not justifiable in terms of the limitation clause, the court must grant appropriate relief. This aspect is dealt with in another study theme. 62 5.3 The special case of section 35(5) In the criminal justice system if sometimes happen that the police investigating a case obtained evidence by unconstitutional means, that is, through conduct which infringes a constitutional right of an accused. The question is whether such evidence would ever be admissible in the trial against such accused. This kind of constitutional conduct cannot possibly be justified in terms of section 36(1), because the limitation is caused not by law (of general application) but by conduct. Still however, there is a need for this issue to be constitutionally regulated. Section 35(5) deals with this matter. It provides as follows: Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. This question will be dealt with in detail in law of evidence. 63 STUDY THEME 6: THE RIGHT TO EQUALITY AND AGAINST UNFAIR DISCRIMINATION AND THE POSITION OF MINORITIES 6.1 Introduction Since the end of World War II the right and the value of equality (and the right against unfair discrimination) has become of paramount importance in many national constitutions as well as in a raft of international-law and regional human-rights instruments, such as the Universal Declaration of Human Rights (UDHR) of 1948 and the International Covenant on Civil and Political Rights (ICCPR) and various conventions of the International Labour Organisation (ILO), the European Convention on Human Rights and Individual Freedoms (1950) and the African Charter on Human and Peoples’ Rights (1981). In the present South African constitutional order equality features as a value in the founding provision of the Constitution (section 1) and in various other provisions (for example section 36(1) and 39(1)) and then as a right in section 9. It is one thing to provide for the right to equality, yet something quite different to avow the value of equality and clearly implausible to assert that people are in fact – in reality – equal. It is simply an entirely unsustainable assertion, because however, strong we might feel about people’s alleged equality, people are in fact precisely not equal. Far from it. People differ in all practical respects. They are not equally intelligent, equally strong, hard-working and they are not equal in talent, attraction, size, personality, character, temperament, moral integrity, truthfulness, descent, will-power and all other respects one can think of. From a practical point of view people are unequal and dissimilar on all accounts. They are not equal in any respect. The daily experience of all of us reinforces the overwhelming truth about the inequality and dissimilarity of people time without number. Moreover, many forms of inequality are unalterable given realities. They cannot be changed, and nothing can be done about it. Neither are we as individual human beings really committed to the achievement of equality. Precisely the opposite holds true. We strive to be well-performing students, exceptional advocates, attorneys, prosecutors and legal advisers; certainly not average or mediocre ones. We strive towards the achievement of and recognition for such achievement, that is, for exactly those things that set us apart from the mediocre ones; the things that underscore our enhanced professional and social standing, the things that make us exceptional, better, different and favourably unequal. To that end we unwittingly or expressly work hard to outperform others. We precisely do not want to be equal to all the other. We want to be unequal, better and quite frankly more powerful. Yet, in political and legal discourse we strongly avow equality. More than that, in contemporary public discourse, it will be hard to find someone not professing equality. Not to do that is to tread on dangerous terrain. Freedom of expression simply does not really allow for such impertinence. 64 So how does one explain this dissonance between the actual reality of inequality and our sanctified avowal of equality; how can equality be proclaimed so passionately in the face of the reality of inequality and difference? The answer is that when equality is proclaimed, it has nothing to do with a reality of inequality. Equality is an abstraction; an abstract idea, a notion or a myth, that is, something that we believe in, almost as a religious idea, yet far removed from actual reality. Thus historian Yuval Harari states as follows (commenting simultaneously on Hammurabi’s legal code and the American Founding Fathers’ Declaration of Independence): “In fact, they are both wrong. Hammurabi and the American Founding Fathers alike imagined a reality governed by universal and immutable principles of justice such as equality* and hierarchy**. Yet the only place where such universal principles exist is in the fertile imagination of Sapiens and in the myths, they invent and tell one another. These principles have no objective reality. It is easy for us to accept that the division of people into ‘superiors’ and ‘commoners’ is a figment of the imagination. Yet the idea that all humans are equal is also a myth.” (Yuval N Harari 2015 Sapiens – a brief history of Humankind Vintage p 122). *In the case of the American Declaration of Independence. **Hierarchy in the case of Hammurabi’s code. At the beginning of Study Theme 1 we referred to a number of myths in the South African constitutional discourse. We mentioned there that they were in fact not the only ones. Equality is another of these myths of our constitutional discourse. Whenever we deal with the right and value of equality, it is advisable to remind ourselves that in fine this is premised on a myth. It is against this backdrop that we now proceed to discuss equality in South African positive law. 6.2 The right to equality and against unfair discrimination in South African law 6.2.1 Introduction Value - Section 1(a): The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. Contextual interpretation of the equality clause: It is often emphasised that section 1(a) must be interpreted against the backdrop of the history of inequality and therefore not only with a view of removing discrimination and stumbling blocks in the way to achieve equality, but also to create the conditions for achieving equality. See in this regard section 9(2), which is quoted below. The judgment in Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 40 is pertinent in this context. The Constitutional Court stated that the right to equality is of particular importance in South Africa against the backdrop of a history of discrimination. 65 There are dicta in South African jurisprudence highlighting that the value and the right to equality are closely related to the notion of diversity and tolerance for difference. In Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 60 the Court stressed that the right to equality requires that differences between people be recognised and protected. The court stated: “Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society.” We now proceed to discuss the key concepts of formal, substantive and corrective equality. 6.2.2 Formal equality Formal equality would be achieved if a measure provides for the same standard to be applied to everyone and therefore for uniform (the same) treatment for everyone that finds themselves in the same circumstances. Inequality would therefore occur when a measure lays down different standards for various categories of persons even though they find themselves in the same position. The test for formal equality is the way in which a measure is formulated. Equality cannot, however, always be achieved through uniform treatment. Hence, in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) para 41 the Court stated that equal treatment on the basis of equal worth and freedom would not necessarily be achieved by insisting upon identical treatment in all circumstances. 6.2.3 Substantive equality: Substantive equality requires that the different conditions that people (of different categories) might find themselves in, be examined. This may bring to light that different categories of persons, finding themselves in different positions, may experience the same rule/standard differently – some favourably others unfavourably. This requires that different standards be applied to different categories of persons (finding themselves in different positions) precisely in order to achieve equality. Inequality would in this case occur when the same standard is applied to different categories of persons that require different treatment in order to achieve equality. The test in the case of substantive equality is the effect of a measure, not the way in which it is formulated, which as we have seen above is the criterion for formal equality. The concern of substantive equality is equality of outcome. 66 6.2.4 The concept of restitutionary /corrective equality: In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) para 61 the Court observed that the achievement of equality does not allow for a mere laissez faire approach but requires that remedial or corrective measures be instituted. This is interpreted against the background of the concept (or programme) of transformation, also described as transformationism, which though not expressly mentioned in the Constitution, has been endorsed by the Constitutional Court in for example Bato Star Fishing v Minister of Environmental Affairs 2004 (4) SA 490 (CC) para 47; South African Police Service v Solidarity obo Barnard 2014 (10) BCLR 1195 (CC) and various other judgments. The idea of restitutory equality is also reflected in affirmative action which is provided for in section 9(2). We now proceed to deal with section 9(2) of the Constitution. 6.2.5 Section 9 Section 9 provides as follows: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. It should be noted immediately that this section clearly includes both formal and substantive equality by providing for equality before the law; the right to equal protection of the law; and the right to equal benefit of the law. It is clear from section 9(2) that corrective equality – affirmative action – is also expressly provided for. 67 6.2.6 Harksen v Lane The judgment in Harksen v Lane 1997 (11) BCLR 1489 (CC) is the locus classicus for the test for equality in South African constitutional law. In this case the Court held that a single test for the right to equality and the right against unfair discrimination should apply. We now proceed to discuss how the Court argued. (a) The right to equality The first question to be asked is whether the challenged law or conduct differentiate between people or categories of people? If so, the next question is whether this differentiation serves a legitimate purpose? The purpose must be for some public good. In order to answer this question, the legitimate governmental purpose must first be identified. If such purpose cannot be identified, the right to equality will be found to be infringed. Thus the first stage of an inquiry on whether or not there was an infringement of a constitutional right (the right to equality in this case) will be completed, which then requires a second stage, namely the limitation stage in terms of section 36(1). (See study theme 5). However, if there is a legitimate purpose, a next stage in the inequality inquiry follows, namely whether there is a rational connection between the differentiation rule and the purpose for it was adopted. This invokes the question of rationality. Government is required to act rational. If such rational connection is absent, it the right to equality will be held to have been infringed (once again necessitating the limitation stage. The point is that the differentiation is not permitted to be based on naked preferences. Government is required to act rationally. (Prinsloo v Van der Linde 1997 (3) SA 1022 (CC)) Many similar cases dealing with rationality followed since that time. If the differentiation proves not to be rationally connected to the purpose, the right to equality in terms of section 9(1) is violated. However, even if it there is a legitimate governmental purpose and even if the differentiation is found to be rationally connected to that purpose, the differentiation might still amount to (unfair) discrimination as envisaged in section 9(3) or 9(4). Hence, a measure or conduct which does not infringe the right to equality in accordance of the criteria just explained, might still prove to constitute unfair discrimination. We now focus on that. (b) The right against unfair discrimination Discrimination as such is not unconstitutional. It must be unfair in order to be unconstitutional. In order to determine whether there was in fact unfair discrimination a two-stage analysis is applied: Firstly, (the discrimination stage) one has to establish whether a differentiation measure that was adopted for a legitimate government purpose amounts to discrimination. 68 If a differentiation measure was on a ground listed in section 9(3) discrimination is established. (What do the various listed grounds mean? What is the difference between sex and gender and what meaning is to be attached to birth?) If on a non-listed ground, then the question whether the differentiation measure amounts to discrimination will depend on whether objectively, the ground on which the differentiation is based relates to attributes and characteristics that have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. (Harksen para 46) Such other ground not mentioned in the list which falls within the above definition is referred to as an analogous ground. What can these analogous grounds possibly be? = HIV-status (Hoffmann v South African Airways 2001 (1) SA 1 (CC); = Citizenship (Khosa v Minister of Social development 2006 (4) SA 505 (CC). Secondly (the unfairness stage) once the differentiation is found to be discrimination the next question is whether it was unfair. If the differentiation was on a listed ground – unfairness is presumed, placing the burden of rebuttal on the respondent (Section 9(5)). If on a non-listed ground – the burden is on the complainant (applicant) and the inquiry will revolve on the impact of the discrimination on the complainant and similarly placed people. Unfair discrimination is basically discrimination with an unfair impact, which is determined with reference to factors such as: • whether the victim was detrimentally affected by past discrimination; • the legitimacy or otherwise of the purpose of the discrimination; • the extent which the rights of the victim are infringed. (c) If the discrimination is found to be unfair the normal second stage (limitation stage) of the inquiry in terms of the limitation clause is applied. 6.2.7 Comments on the above test It is not necessary to apply both the parts of the inquiry in all cases. When it is obvious that there is unfair discrimination there is for example no need to apply the first part. Not all cases of differentiation constitute inequality. The test shows that differentiation which is rational is not an infringement of the right to equality. 69 The test for equality is therefore basically a rationality test, aimed at preventing arbitrary differentiation. Such arbitrary differentiation would constitute a naked preference. (Purpose and means that could achieve the purpose.) It is difficult to imagine that discrimination that was found to be unfair could still be viewed reasonable and justifiable under the limitation clause. 6.3 Direct and indirect discrimination Direct discrimination occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category. In the case of indirect discrimination on the other hand the measure or conduct does not discriminate openly - in as many words in its formulation. The measure appears to be neutral, but the effect is to discriminate, that is, to treat a particular category in a way that is detrimental compared to other categories. (Pretoria City Council v Walker 1998 (2) SA 363 (CC) para 32.) This corresponds with the criterion for substantive equality, discussed above. 6.4 Discrimination in contrast to unfair discrimination In accordance with the approach of current South African constitutional law unfair discrimination occurs when a differentiating measure impairs the human dignity or has the effect of infringing some other right(s) of those who are being discriminated against. In the context of the unfairness of discrimination it is important to differentiate between scenarios of differentiating between listed grounds of discrimination prohibitions in section 9(3) and the non-listed grounds. If a measure differentiates on a listed ground the unfairness is presumed. The onus is then on the discriminator to prove that the presumed unfair discrimination is in fact not unfair. The same applies as is evident from section 9(4) if the alleged unfair discrimination is perpetrated by a private person. Intent not required for a finding of discrimination. However, intent might be factor pointing to unfairness. We noted that affirmative action is provided for in section 9(2). This is a matter which is specifically important in the work environment and therefore in the field of labour law. Affirmative action measures must be so designed that persons / categories of persons whose category has been disadvantaged by previous discrimination draw benefit from these measures, regardless of whether a minority of specific beneficiaries or a specific person might not have been disadvantaged by previous discrimination. (The beneficiaries are merely required to belong to a category of previously disadvantaged persons.) Such measures must advance the group which was previously disadvantaged or be capable of doing so. In the final analysis it must promote the achievement of equality. The most important, yet controversial judgment on this question is South African Police Service v 70 Solidarity obo Barnard 2014 (10) BCLR 1195 (CC).This is a matter, as we have said, which is of specific importance in the field of labour law. 6.5 PEPUDA The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 has been passed in pursuance of section 9(2) order in order to give detailed effect to the promotion of equality. 6.6 Case law There are many judgments of the Constitutional Court which are of importance in the context of section 9 of the Constitution. We restrict ourselves to the following important ones: • Harksen v Lane 1998 (1) SA 300 (CC) paras 63-68; • Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) paras 59-60; 70-82; 110114; 132-139. • National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) paras 14-27; 60; 62; • Pretoria City Council v Walker 1998 (2) SA 363 (CC) paras 25-66; • South African Police Service v Solidarity obo Barnard 2014 (10) BCLR 1195 (CC). 6.7 The right to equality and minorities In public international law the rights of minorities have been dealt with as an aspect of the right to equality and against unfair discrimination. We now proceed to dedicate some attention to this question, which is clearly also of importance in the South African context. The most authoritative definition of the concept of minority is provided by Fransesco Capotorti’s UN commissioned study entitled Study On The Rights Of Persons Belonging To Ethnic, Religious, And Linguistic Minorities. The definition reads: ‘A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’ The non-dominant position of a minority community places it in a precarious position visa-vis the majority that possesses political power. Unlike the majority it does not have the numerical strength to gain political power through the ballot box. Precisely owing to its numerical weakness is also runs the risk that it can easily fall prow to the misuse of political power by a majority-dominated government who may discriminate against minorities or even worse, who may pass measures denying the minority its identity and very existence through assimilation measures. There are minorities – ethnic, religious, linguistic, cultural etc. - in virtually all modern states. For that reason, there are real risks and many actual cases of minorities having 71 seriously been harmed by majority dominated government seeking to impose a single statist identity on all inhabitants. There are many ways, including self-determination, in which minorities may be protected. However, in the present discussion the focus is on the way in which the right to equality should be interpreted and applied in order to accommodate minorities on an equal footing with the rest of the national population. Before World War 1 In the previous Turkish empire and the empire of Austrian-Hungary both of which were dissolved at the end of World War I there were wide-ranging internal arrangements protecting the interests of the religious and linguistic communities in these multi-national states. After World War 1 In international law the first express protection for minorities appeared in the various treaties adopted at the end of World War I, creating new states and protecting the minority communities living in these states. The crux of the protection of minorities was spelt out in the Advisory Opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ, PCIJ Reports, Series A/B No 64, 1935, 17 in which the PCIJ stated: “Secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceable alongside that population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs.” In order to attain this object, two things were regarded as particularly necessary … The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and minority if the latter were deprived of their own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being a minority.’ The two aspects that were stressed and that formed the basis of minority protection are: • The right against discrimination that sought to provide for formal equality; and • The right to identity which is an aspect of the right to equality and against discrimination. 72 This part requires special arrangements in the interests of minorities to be adopted in order to guarantee the right to equality for minorities. These special arrangements do not imply preferential treatment for minorities. It is but a prerequisite for ensuring that minorities would enjoy the right to equality and the right against (unfair) discrimination on an equal basis with the rest of the national population. After World War II After World War II minority protection was initially strongly rejected. The then dominant view was that individual rights were sufficient for the protection of minority communities and their members. Yet the UN Sub-Commission for the Prevention of Discrimination and the Protection of Minorities, started to work on minority protection from a very early stage after the formation of the UN. The Sub-Commission endorsed the two-pronged approach of the PCIJ mentioned above. When the ICCPR was adopted in 1966 protection for minorities was one again recognised in article 27 of the Covenant. (Minority) communities as such were however not protected but only the individual members belonging to these communities. Article 27 provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied, in community with other members of their group, to enjoy their culture, to profess and practice their religion and to pursue their own language.” Since the 1990’s the International Committee of Human Rights, which is responsible for the interpretation and implementation of the ICCPR has been giving an interpretation of article 27 which once again places the need on special measures in favour of minority communities in order to give effect to the right to equality. Hence, even though the wording of article 27 suggests that the provision is limited to the protection of individual rights of members of minority communities only, the Committee now understands and applies it also to provide for the protection of the integrity of minority groups as collective bearers of rights. On occasion the Committee for example required governments to report on which positive measures states had introduced to protect minority interests. By virtue of this extensive interpretation of article 27 the Committee therefore expected governments to take active measures towards the promotion of minority communities as such. On various occasions the Committee wanted to learn from governments whether pupils from minority communities received mother tongue education in their own schools and also whether university education was provided for members of a minority community in their mother tongue. The protection of the right of minorities was strengthened further with the adoption of the 1992-UN Declaration on the rights of persons belonging to ethnic, religious and linguistic minorities. 73 Articles 1 and 4 of the Declaration provide: Article 1 1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. 2. States shall adopt appropriate legislative and other measures to achieve those ends. Article 4 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. 2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. 3. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. 4. States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. 5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country. 74 STUDY THEME 7: FREEDOM OF RELIGION, BELIEF AND OPINION 7.1 Introduction Constitutions often contain references to religion especially in their preambles. The preamble to the South African Constitution concludes with the words “May God protect our people” and “God bless South Africa” and equivalents in all the other official languages. The oath (for which there is also the alternative of a solemn confirmation) to be taken by the president, ministers etc, provided in Schedule 2 to the Constitution is also inherently religious in nature. The right to religious freedom and other rights of the kind provided for in section 15 of the Constitution (and in many in other constitutions and human rights instruments) may lead among other things to the following constitutionally related questions: - To what extent should religious-based practices be accommodated by the law of the state? - Should people professing a certain religion be exempted from rules otherwise applicable in order to accommodate the religion in question? - To what extent, if at all, should there be autonomy for religious bodies to make and administer their own internal rules and practices be recognised even though that might be incompatible with constitutional rights or provisions in legislation? Another question pertinent to the right to freedom of religion relates to whether or not there should be a strict distinction between the state and religion: should the state keep an equal distance from all religion, or should it recognise all and treat them equally? We now proceed to deal with the three subsections of section 15. - 7.2 Section 15(1) (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion Note that this subsection is not restricted to religion. Many other related interests are also protected. Hence, there is no pressing need to define religion in precise terms in order to determine to what the right applies. What is not protected under religion may enjoy protection as conscience, thought, belief and opinion. 75 The right to religion (and the other interests mentioned in section 15(1)) must be interpreted and balanced with reference to relating rights: section 9(3) and (4) (the right against unfair discrimination; section 16 (expression); section 18 (association); section 31, more specifically section 31(2) (the right of people belonging to cultural, religious and linguistic communities). Aspects of the right to freedom of religion In S v Lawrence 1997 (4) SA 1176 (CC) para 92 the Court identified with reference to the Canadian judgment in Big M Drug Mart the following aspects to this right. The right to - have (entertain) religious beliefs; - to declare religious beliefs openly and without fear of hindrance or reprisal; - the right to manifest religious belief by worship and practice or by teaching and dissemination. It also includes the rights to change one’s (religious) convictions, to promote and teach them and to assemble with others of the same conviction. It also includes the negative element that people may not be forced to act contrary to their convictions. It is difficult to distinguish religion from culture (and the customs that are followed as part of a culture.) Religious practices are frequently informed not only by faith but also by custom. See the observations by the Constitutional Court in this regard in MEC for Education, KwaZulu Natal and Others v Pillay 2008 (1) SA 474 (CC) para 47. 7.2.1 The notion of “reasonable accommodation” The legal and constitutional accommodation of religion can be a thorny question, particularly in multi-religious societies. Religious communities and people belonging to religious communities often insist on following practices that are somehow incompatible with the general law of the state. One of the most crucial questions in relation to religion is therefore to what extent the law of the state, among other things by constitutional arrangements should accommodate such claims to be treated differently. Religion and belief often involve discrimination or other practices that might not be consonant with the world view endorsed by the Bill of Rights. Relevant in this context is the notion of so-called reasonable accommodation. Accordingly, the claims of persons belonging to religious communities that deviate from the commitments of the Bill of Rights are somehow inconsistent with the other rights in the Bill of Rights may be accommodated. However, such accommodation must still comply with the values of and open and democratic society as envisaged in section 36. In Christian Education 2000 (4) SA 757 (CC) para 32 the Constitutional Court stated in this regard as follows in relation to the administering of corporal punishment in schools: “In the present matter it is clear that what is in issue is not so much whether a general prohibition on corporal punishment in schools can be justified, but whether the impact of such a prohibition on the religious beliefs and practices of the 76 members of the appellant can be justified under the limitations test of s 36. More precisely, the proportionality exercise has to relate to whether the failure to accommodate the appellant's religious belief and practice by means of the exemption for which the appellant asked, can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.” In para 35 of MEC Education v Pillay 2008 (1) SA 474 (CC) the Court stated in the same vein: “The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.” As mentioned, the religious freedom and accompanying practices may be incompatible with various other constitutional rights. Viewed from an opposite angle many legal rules might possibly restrict the right to religious freedom. In adjudicating disputes regarding the right to religious freedom the focus would first be on whether the belief (and practices) that the claimant seeks to protect are crucial for the religion in question. Do these beliefs and practices go to the core of the religion in question? The courts ask whether reliance on the right to religion is genuinely based on the religious conviction concerned and whether the claim of the right to religion is sincere. This will have to be balanced with the extent to which that belief invades the constitutional rights of others and with legitimate public concerns. We mention a number of examples of cases. Examples: In Christian Education 2000(4) SA 757 (CC) it was argued that corporal punishment should constitutionally be protected (retained) as part of a particular Christian conception of discipline. It was decided, however, that the prohibition of corporal punishment in independent schools does not unduly invade the right to religious freedom, particularly as the limitation (the prohibition) seeks to protect other rights (dignity and section 12(1)(c)). Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional 77 Development and Others 2019 (11) BCLR 1321 / 2020 (1) SA 1 (CC) the Constitutional Court made a similar ruling with regard to corporal punishment administered by parents. In Hay v B 2003(3) 492 (W) parents’ refusal of a blood transfusion for their terminally ill child on religious grounds was found to be unjustifiable. One of the aspects of the right relates to the autonomy of religious bodies and thus the power of such bodies to decide on their own doctrine (belief system), internal organisation and practices. In particular cases these practices might be discriminatory, yet still constitutional because, amongst other things, these bodies are voluntary. In Taylor v Kurtstag 2005 (1) SA 362 (W) the internal arrangements of a religious / cultural organisation to maintain the integrity of the association was recognised. In Gaum and Others v Van Rensburg NO and Others [2019] 2 All SA 722 (GP the Court in a very controversial decision in a different set of facts/, relating to the eligibility of homosexual persons to occupy religious offices in the Dutch Reformed Church came to an opposite conclusion. In these cases the right overlaps with the right to freedom of association and cultural rights in section 30, 31. The right also focuses on the element of liberty because the choices that people exercise in this regard enhance the significance of autonomy and identity, thus also confirming the constitutional commitment to diversity. See in this regard MEC Education v Pillay 2also referred to above. Prince v Cape Law Society 2002 SA 784 (CC) dealt with the prohibition of the possession of dagga, specifically as far as the prohibition also applied to Rastafarians who use dagga as part of their religious practices. The prohibition constitutes an infringement of the right to freedom of religion but found by the Constitutional Court with a small margin to be justifiable under the limitation clause. This prohibition of the possession of dagga is arguably overbroad. There might be less restrictive ways short of a general prohibition or a blanket prohibition, but these rules the Court were too difficult to administer. Hence, in practice less restrictive means were held not to be available. Consequently, the infringement was held justifiable under section 36(1). Sixteen years later in Minister of Justice and Constitutional Development v Prince and Others 2018 (10) BCLR 1220 / 2018 (6) SA 393 (CC) the Constitutional Court reached an opposite conclusion. 7.2.2 “Equality of religions” In the United States the so-called establishment clause in amendment 1 to its Constitution provides: “Congress shall make no law respec