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STUDY UNIT 11: EQUALITY, HUMAN DIGNITY, FREEDOM, AND PRIVACY

RIGHTS

The right to equality

 The focus will be on the legal approach to equality.

 Section 9 of the Constitution: Equality
(1) Everyone is equal before the law and has the right to 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.

Two important consequences flowing from this conception of the right to

equality

 It does not refer to the identical treatment of everyone at the same time
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 The focus is on the effects of the law and society which give rise to inequality
in the first place. The focus is not on making the law treat everyone the
same. This is substantive equality not formal equality.

Formal equality: the belief that inequality is irrational and arbitrary, that people
are all born free and equal and that the harm of discrimination is situated in the
failure of a government to treat all people as equally free.

 The formal idea of equality is that people should all be treated the same by
law the law (liberal idea)

Criticism: formal equality concept is criticised because it is not neutral in

practice.

 The law only exists in a particular social context and “neutral” laws may have
different effects on different people.

Substantive equality: acknowledges that the “neutral” may often actually be

biased towards pre-existing power dynamics in a particular context.

 A legal commitment to substantive equality therefore requires attention to

context
 Context includes the social and economic inequalities in society, and the
effects of past and ongoing prejudice and discrimination on the life
opportunities of individuals.
 The focus is on the impact of the treatment and not necessarily the treatment
itself
 Substantive equality is remedial in nature and aims to overcome the effects of
past and ongoing prejudice and discrimination as well as the broader
structural reasons for the disempowerment and economic disadvantage faced
by some individuals or groups in society.
 Minister of Finance and Other v Van Heerden: The Constitutional court stated
that “the notion of substantive equality recognises that besides uneven race,
class and gender attributes of our society, there are other levels and forms of
differentiation and systematic under-privilege which still exist. It is therefore
incumbent on Courts to scrutinise in each equality claim the situation of the
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complainants in society, their history and vulnerability; the nature and

purpose of the discriminatory practice and whether it ameliorates or adds to
group disadvantage in real-life context, to determine its fairness or otherwise
in the light of the values of our Constitution. In the assessment of fairness or
otherwise a flexible but situation sensitive approach is indispensable because
of shifting patterns of hurtful discrimination and stereotypical response in our
evolving democratic society. The unfair discrimination enquiry requires several
stages.”

Interpretation of section 9

- The interpretation of Section 9 of the Constitution is informed firstly by

section 39(1) of the Constitution: values that underlie an open and
democratic society based on human dignity equality and freedom.
International law is also looked at
- Secondly it is informed by the context in South Africa of the Bill of Rights, of
the impugned law/ conduct, and of the affected group(s)
- Thirdly it is informed by systematic analysis; looking at the complex effects of
the law and social relations, and whether the law/conduct is going to improve
or worsen things overall, in the long run.
- It is also informed by Constitutional values such as human dignity, equality,
and freedom.
- President of the Republic of South Africa and Another v Hugo: places human
dignity at the heart of the equality enquiry.
- There must also be a negative impact on human dignity for there to be unfair
discrimination especially if on a non-listed ground.

Attacking the constitutionality of a legislative provision: section 9 of

the Constitution

 Different legal tests apply to different situations in which an equality

complaint is lodged.
 Firstly: Where a distinction between different people stems from a
legislative provision and the litigant asks the court to declare that the
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provision is invalid, the court must rely directly on sections 9(1), 9(2) or
9(3) of the Constitution.
 The three sections, however, are completely different, and work
differently. The facts must be analysed to work out which is the correct
section and process to use from the start.
 A direct reliance on section 9 is required in cases where legislation is
challenged because legislation can only be invalidated by invoking the
Constitution itself.
 This is because the Constitution is supreme and therefore superior to the
legislative provision under attack. (Legislation cannot be used to invalidate
other legislation)
 Where a litigant attacks the actions of a public official, or private entity on
equality grounds but it does not relate to the possible invalidation of a
legislative provision, the litigant will have to rely on the relevant provisions
of PEPUDA.
 Principle of subsidiarity requires a litigant who claims that one of his or her
constitutional rights have been infringed must rely on legislation adopted
to protect that right. The litigant may thus not rely on underlying
constitutional provisions directly.
 PEPUDA gives effect to section 9 and must be the first port of call, as it is
more detailed than the constitutional provision.
 PEPUDA gives effect to section 9, and it must thus be interpreted in the
light of the Constitutional courts’ jurisprudence on section 9. (Case law
meaning of the words in section in section 9 must be used to read
PEPUDA).
 Section 9 deals with three distinct situations:
 Section 9(1) applies in cases where the legislative provision differentiates
between people or groups of people, but this differentiation is not based,
either directly or indirectly, on one of the grounds listed in section 9(3) or
on an analogous ground that is similar to the grounds explicitly listed in
section 9(3). (Known as mere differentiation)
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 Section 9(2) applies in cases where the legislative provision explicitly aims
to give effect to restitutionary/ redress measures. (Affirmative action
measures). If a legislative provision aims to implement a restitutionary
measure, the courts tests the constitutionality of that provision under
section 9(2). If the restitutionary measure complies with section 9(2) that
is the end of the enquiry. The provision is constitutionally valid and cannot
be tested against section 9(3).
 If the legislative provision does not comply with section 9(2) to test
legislative provisions that implement affirmative action measures.
 Whenever the different treatment is based either directly or indirectly on
one or more grounds listed in section 9(3) or on a ground that the Court
has found to be sufficiently similar to the grounds listed in section 9(3) to
be considered under that section: the different treatment cannot form part
of a legislative affirmative action programme or policy (section 9(2)).
 The court must test the provision against section 9(3), if using section
9(3), you don’t have to go through section 9(1) first. (Mere differentiation
is different to differentiation in terms of unfair discrimination)
 E.g., a legislative provision that grants women but not men the right to a
certain number of days of parental leave.

Mere differentiation: section 9(1)

 Cases of mere differentiation are dealt with under section 9(1) which states:
‘Everyone is equal before the law and has the right to equal protection and
benefit of the law’.
 This section means (1) that everybody is entitled, at the very least to equal
treatment by our courts of law, and (2) that no one should be above or
beneath the law, and that all are subject to law, impartially applied and
administered.
 Examples: distinctions between different classes of taxpayers.
 Section 9(1) will be violated if the differentiation is not rational.
 The state must act lawfully, and cannot regulate in an arbitrary manner (the
principle of legality, and related to the rule of law)
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 The law requires that the state functions in a rational manner and that it does
not distinguish between people or groups of people in a way that is irrational.
 This means there must be a specific and legitimate governmental purpose,
and the purpose must be linked to the differentiation.
 If there is no specific purpose, or if it is irrational, the legislative provision will
be invalid.
 Ngewu and Another v Post Office Retirement Fund and Others : Divorced
spouses of post office workers were treated differently to divorced spouses of
other workers- with no reason for it.

Redress measures: section 9(2)

 The section recognises that the achievement of equality requires the state
and other powerful institutions in society to take positive steps to address
the deep social and economic inequalities in society.
 The state and other powerful institutions must also address the structures
and systems that help to perpetuate this inequality.
 This recognition lies at the heart of the notion of substantive equality.
 Corrective or restitutionary measures are mandated by section 9(2) as part
of a credible and abiding process of reparation for past exclusion,
dispossession, and indignity within the discipline of the constitutional
framework.
 The corrective measures aim to eradicate a system that perpetuates
inequality and to address social and economic inequality to achieve
equality in the long term.
 A constitutional challenge to restitutionary measures – even based on the
grounds of discrimination listed in section 9(3)- must be tested against
section 9(2)
 Once a court has determined that the measures comply with the
requirements of section 9(2), they cannot be presumed to be unfairly
discriminatory and cannot be tested against section 9(3)
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 This means that if it is shown that the measures comply with section 9(2)
and that they are valid restitution measures, this is a complete ‘defence’
against any charge that the measures unfairly discriminate on anyone.
 Onus: in cases where the constitutionality of restitutionary measures is
attacked, the onus rests with the party who alleges that the measures are
unconstitutional. The attacking party would then have to show that the
measures do NOT qualify under section 9(2), and then they can go
through section 9(3) analysis and get the benefit of the section 9(3)
presumption of unfairness.
 To determine whether a set of corrective measures complies with section
9(2) and is therefore valid, a court will focus on three distinct questions
 (a) Do the measures target persons or category of persons who have been
disadvantaged by unfair discrimination? (Test focuses on whether the
group has been disadvantaged in the past by unfair discrimination)
(b) Are the measures designed to protect or advance such persons or
categories of persons? (In Van Heerden, the court said the measure must
be reasonably capable of attaining the desired outcome of addressing the
effects of past unfair discrimination)
(c) Do the measures promote the advancement of equality in the long
term? (The court will make this value judgement in the light of all the
circumstances, Van Heerden stated that the balancing of interests is
required.

Unfair discrimination: section 9(3)

 Differentiating on grounds listed in section 9(3) or on analogous grounds

amounts to discrimination
 In some cases, differentiation may be rational in terms of section 9(1)- which
is a low bar.
 The discrimination analysis is a higher standard than rationality. In other
words, it means the State must not only be rational, but it must be fair.
 Any measure which does not qualify as a section 9(2) redress measure may
possibly amount to unfair discrimination in section 9(3). The unfair
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discrimination analysis can only follow if it is not a legitimate redress

measure.
 Section 9(3) can be used on its own directly, but also if: section 9(1) is not
violated- if the differentiation is rational, it might nonetheless be unfair
discrimination and if section 9(2) is not met, if it is not a legitimate redress
measure, it might be unfair discrimination.
 In Harksen v Lane NO and Others: The CC stated that a determination of
whether differentiation amounts to unfair discrimination in terms of section
9(3) requires a two-stage analysis: First check if there is a rational
differentiation and whether the differentiation amounts to discrimination.
Second, is the discrimination unfair?
 The court in the Harksen case distinguished between discrimination and
unfair discrimination, arguing that not all forms of discrimination are unfair.
 Where discrimination can be proven not to be unfair, the legislative provisions
do not contravene section 9(3).
 Section 9(3) contemplates two categories of discrimination that courts should
deal with in different ways.
 The first category is differentiation based on one or more of the sixteen
grounds specified in section 9(3)
 The second category is differentiation on a ground not specified in section
9(3), but analogous to such grounds
 If discrimination is not on any of these grounds, it won’t be discrimination, it
will merely be differentiation which must be rational in terms of section 9(1)
 The court must determine objectively whether the differentiation has occurred
on a specified (listed) or unspecified (unlisted) ground
 Intention is not part of a discrimination analysis
 Section 9(3) refers to grounds ‘including’, meaning it is not a closed list. There
unlisted grounds called analogous grounds
 This allows the court to uncover new forms of discrimination not explicitly
recognised by the drafters of the Constitution.
 The analogous grounds are also objective, with two questions:
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 First, the court must determine whether the differentiation relates to the
unequal treatment of people based on other attributes and characteristics
attaching to them which are not related to the specified grounds but are
nevertheless comparable to them.
 Second, the court must determine whether this differentiation has the effect
of treating persons differently in a way which impairs their fundamental
dignity as human beings who are inherently equal in dignity or affects a
person adversely in a comparably serious manner
 In the Hoffman v South African Airways case, the CC found that where HIV-
positive individuals are treated differently based on their HIV status, this
constitutes discrimination on the analogous ground of HIV status.
 The prohibition on discrimination applies to both direct and indirect
discrimination
 The aim of section 9 of the Constitution is the pursuit of substantive equality,
not all forms of discrimination will be found to be unconstitutional.

Is the discrimination unfair?

 According to the CC, at the heart of the prohibition of unfair discrimination

lies a recognition that the purpose of the Constitution is the establishment
of a society in which all people are accorded equal dignity and respect
regardless of their membership of particular groups.
 To determine whether the discriminatory provision has had an unfair
impact on a complainant, a court must consider various factors
 The Harksen case highlighted the following factors:
(a) The position of the complainants in society, whether they have
suffered in the past from patterns of disadvantage, whether the
discrimination in the case under consideration is on a specified ground
or not
(b) The nature of the provision or power and purpose sought to be
achieved by it.
(c) With due regard to the factors mentioned above as well as other
factors, a court must then ask to what extent the discrimination has
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affected the rights or interests of the complainants and whether it has

led to an impairment of their fundamental human dignity or constitutes
an impairment of a comparably serious nature
 Relebohile Cecilia Rafoneke v Minister of Justice and Correctional
Services (2022): The applicants were foreign citizens who wish to
be admitted as attorneys in South Africa. They challenged section 9
of the Constitution on their right not to be discriminated against.
Court held that the differentiation was rational and ultimately
decided that the discrimination was fair. Section 24(2)(b) of the
Legal Practice Act bars them from being admitted as attorneys.
 Gaum v Van Rensburg: It is unfair discrimination to bar non-
celibate non-heterosexual people from becoming Dutch Reformed
Church (NG Kerk) ministers; and it is unfair discrimination to
prevent non-heterosexual people from having their unions
solemnised.
 Minister of Home Affairs v Fourie 2006 : The Marriage Act amounts
to unfair discrimination insofar as it only solemnises heterosexual
unions.

The Barnard case

 In the case of Solidarity obo Barnard v South African Police Service 2014 (2)
SA 1 (SCA), the complainant argued that she had been unfairly discriminated
against by an employment equity decision, implemented in terms of the
Employment Equity Act.
 She claimed that this was because she (a white woman) did not get promoted
 The SCA found that the complainant had proved that she had been
discriminated against by the plan, and so presumed the discrimination unfair
in terms of section 9(3) of the Constitution.
 The complainant won her case and her employer appealed to the ConCourt.
 All judgements in the ConCourt case upheld the appeal- the complainant lost.
The majority thus held that, as the decision to not promote the complainant
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had been made rationally, in line with the policy, the complainants’ case could
not succeed.

Non-statutory imposed discrimination: PEPUDA

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA/

Equality Act)

 A litigant may only rely on section of the Constitution when attacking

constitutionality of legislative provisions
 Where a litigant alleges that the discrimination has occurred on the basis of
conduct by a public official, organ of state or private individual, he or she has
to rely on PEPUDA.
 PEPUDA was passed in fulfilment of section 9(4) of the Constitution, which
requires that legislation be implemented to realise- or make real the right.
 Section 9(4) affirms the horizontal application of section 9 to ensure that not
only discrimination by the state but also discrimination by private individuals
or institutions is prohibited.
 In absence of a direct challenge to the PEPUDA, courts must assume that the
PEPUDA is consistent with the Constitution and must decide terms within its
parameters.
 Section 1 of PEPUDA defines discrimination as: any act or omission including
a policy, law, rule, practice, condition, or situation which directly or indirectly:
(a) Imposes burdens, obligations or disadvantage on or
(b) Withholds benefits, opportunities or advantages from, any person on one
or more of the prohibited grounds.
 Section 6 of PEPUDA states that neither the state nor any person may
unfairly discriminate against any person. (general prohibition of unfair
discrimination)
 Social Justice Coalition v Minister of Police 2019: Resources were
distributed unequally between areas in the Western Cape, as
Khayelitsha’s residents are overwhelmingly black African, the Court
found that the allocation scheme amounted to indirect discrimination
on the grounds of race
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 Prohibited grounds listed in section 1 of the PEPUDA includes the 16

grounds listed in section 9(3) of the Constitution as well as:
(c) Any other ground where discrimination based on that ground-
(i) Causes or perpetuates systematic advantage.
(ii) Undermines human dignity, or
(iii) Adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner that is comparable to discrimination
on one of the listed grounds
 Under PEPUDA, prohibited grounds means BOTH listed and unlisted grounds.
 Section 13 of the PEPUDA deals with the onus of proof. The complainant only
has to make a prima facie case of discrimination, and the Court will presume
it did happen. If the respondent cannot dispel the presumption that
discrimination took place (on the facts that it did not happen under definition
of discrimination or that it was not based on a prohibited ground), the
discrimination will be presumed to be unfair.
 Section 14 of PEPUDA deals with the determination of fairness or unfairness
 PEPUDA allows a court to take into account a wider range of factors than
those set out in the Harksen fairness test
 A contextual enquiry remains at the heart of a section 14 enquiry.
 Courts have a discretion to consider all the relevant factors listed in section 14
and then decide whether the discrimination is fair or unfair in light of these
factors
 The section 14 enquiry also requires that a court must have regard to
whether and to what extent the respondent has taken such steps as being
reasonable in the circumstances to accommodate diversity.
 This factor is generally known as the requirement of reasonable
accommodation
 Section 14(1) allows for redress measures to be taken

The right to Human Dignity

 Dignity is one of the founding values of the Constitution and permeates

many aspects of the Constitution
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 The value of dignity is used to interpret the right to equality in section 9 of

the Constitution.
 Dignity also underpins interpretation of other rights in the Bill of Rights,
including social and economic rights.
 Dignity is Both a right and a value under the Constitution.
 Section 10 of the Constitution states that everyone has inherent dignity
and the right to have their dignity respected and protected.
 The right amounts to protection from conditions or treatment which
offends the subject’s sense of his/ her worth in society
 Treatment which is abusive, degrading, humiliating, or demeaning is a
violation of the right to human dignity.
 Conduct which treats the subject as non-human, or less than human, or as
an object is contrary to section 10 of the Constitution
 Human dignity demands that people be treated as unique individuals
rather than as merely representatives of a group.
 Dignity includes: a right to a family life, a right to have one’s agency
respected and protected, the right not to be degraded, stigmatised and
devalued
 Dawood v Minister of Home Affairs; Shalabi and Another v Minister of
Home Affairs; Thomas v Minister of Home Affairs : Illustrates that dignity
operates as both a right and a value in our constitutional sphere. The case
concerned the right of spouses, dependant children and destitute, aged or
infirm family members to remain in the country pending an application for
permanent residence status while all other family members were required
to leave the country.
 National Coalition for Gay and Lesbian Equality v Minister of Justice : the
CC held that the common law criminalisation of sodomy was a violation of
the right not only of equality but also dignity.
 Minister of Home Affairs v Fourie : the CC declared that the denial of the
right of homosexual persons to marry represented a harsh if oblique
statement by the law that same-sex couples are outsiders, and that their
need for affirmation and protection of their intimate relations as human
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beings is somehow less than that of heterosexual couples. The inference

was that same-sex couples were not worthy of the same rights and
protection as heterosexual couples. To remedy this indignity, the CC
declared the common law definition of marriage inconsistent with the
Constitution and invalid to the extent that it did not permit same-sex
couples to enjoy the status and benefits coupled with responsibilities it
accorded to heterosexual couples.
 Government of South Africa v Grootboom : the CC held that foundational
values of the Constitution, those of human dignity, freedom and equality,
are denied to those who have no food, clothing or shelter.
 Minister of Health v Treatment Action Campaign : The Court held with
reference to the right of access to health care that no one should be
condemned to a life below the basic level of dignified human existence.

Human Dignity as a Right and as a value

The value of human dignity informs the interpretation of many if not all rights in the
BoR and in most cases where the value of human dignity is offended, the primary
constitutional breach occasioned may be of a more specific right.

 This leaves a limited but pivotal role for the right (as opposed to the value) to
human dignity
 The right to human dignity will only be directly relied on (on its own) where
none of the other rights will specifically protect the interest at stake
 The CC relied on dignity in the Dawood case precisely because no other right
in the BoR explicitly guarantees the right to marry and family life for
individuals.
 The right to dignity has the potential to be used by the courts to deal with
human rights infringements not specifically addressed by other rights
explicitly included in the BoR

The right to freedom and security of the person

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 Section 12 of the Constitution guarantees certain freedoms, both in terms of

physical integrity in general, and to bodily and psychological integrity in
particular
 Section 12(1) Everyone has the right to freedom, and security of the person,
which includes the right (traditional part of right)
a. Not to be deprived of freedom arbitrarily or without just cause
b. Not to be detained without trial
c. To be free from all forms of violence from either public or private sources
d. Not to be tortured in any way, and
e. Not to be treated or punished in a cruel, inhuman, or degrading way
Section 12(2) Everyone has the right to bodily and psychological
integrity, which includes the right (modern part of right)
a. To make decisions concerning reproduction
b. To security in and control over their body, and
c. Not to be subjected to medical or scientific experiments without
their informed consent
Two aspects of section 12(1)-procedural and substantive
Procedural: a fair and lawful procedure must be followed before anyone
can be deprived of their physical freedom
Substantive: even with a fair and lawful procedure followed, no-one may
be deprived of their freedom on an arbitrary ground or without just
cause
Section 12(1)© The state has both negative and positive duties.
 Negative: state must refrain from interfering with freedom
Positive: state must take action to protect private parties from the
interference of other private parties

The right to privacy

 Section 14 contains a general right to privacy as well as specifically

enumerated infringements of privacy
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 These enumerated (listed) areas of protection form part of the general right
to privacy- but this is not a closed list (there may be more complaints)
 Privacy recognises that we all have a right to a sphere of private intimacy and
autonomy
 Individuals are allowed to establish and nurture human relationships without
interference from the outside community
 The scope of a person’s privacy extends only to those aspects in regard to
which a legitimate expectation of privacy can be harboured
 There are two distinct components of this expectation:
(1) A subjective expectation of the right to privacy (cannot have a subjective
expectation of privacy in cases where willingly waives right)
(2) An expectation that the society has recognised as objectively reasonable
(focuses on a determination by a court on whether the person claiming
that his/her right to privacy was infringed could reasonably expect his or
her privacy to be protected in the particular circumstances)
 This ‘reasonable expectation’ depends on whether the inner sanctum of
personhood was interfered with
 Bernstein v Bester: as you move from the personal individual sphere into the
public communal sphere, the expectation decreases.
 The inner sanctum of a person’s life, in his or her truly personal realm like his
home or her home or bedroom, there would be far greater likelihood that a
person’s expectation of having his or her privacy respected is reasonable
 Privacy is viewed as a continuum with more intense protection at its core and
less intense protection on the periphery
 Privacy and dignity are closely related (where a person’s privacy is breached,
that person will often not be treated with concern and respect)
 There are a range of factors relevant to distinguishing the core of privacy
from its penumbra
 One of the considerations is the nature of the relationship concerned
 S v Jordan: The majority judgement (same conclusion as the minority
judgement) concluded that if the right to privacy is implicated at all in a case
where sex work is regulated, it lies at the periphery and not its inner core
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 Investigating Directorate: Serious Economic Offences v Hyundai Motors

Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO (Hyundai) held that the privacy of a juristic person would be less
intense than those of a human being. Although juristic persons like big
companies also enjoy the protection of the right to privacy right, this
protection would be weaker than for an actual human being
 National Coalition for Gay and Lesbian Equality v Minister of Justice: the CC
held that the criminalisation of sexual conduct of queer people can infringe
the rights to equality, privacy, dignity and freedom
 Emphasising the breach of multiple rights could highlight just how egregious
the invasion of the constitutional rights is
 When recognising the breach of privacy in such a setting, it can strengthen
the conclusion that the discrimination inherent in the breach of privacy also
constitutes unfair discrimination
 In the Teddy Bear Clinic case: the CC affirmed that the right to privacy in
sexual matters is not only enjoyed by adults but also adolescents. In this
case, legislation criminalised consensual sexual/romantic activity between
adolescents.
 Where legislation criminalises the consensual conduct of adolescents it applies
to the most intimate sphere of personal relationships and therefore inevitably
implicates the right to privacy.
 In the Prince/Rubin/Action 2018 case, the ConCourt held that the prohibition
on the use, cultivation and possession of cannabis in private by adults for
personal consumption infringed on the right to privacy. The Court held that
the blanket prohibition was not a justifiable limitation of the right to privacy.
 AmaBhungane v Minister of Justice 2021: a journalist for AmaBhungane (who
expose State corruption) suspected that he’d been spied on and asked the
State about it. The State had no right to find out. (Read more on slides about
RICA)