Section Nine of the Constitution of South Africa
Encyclopedia
Section Nine of the Constitution of South Africa
guarantees equality before the law
and freedom from discrimination
to the people of South Africa. This equality right is the first right listed in the Bill of Rights. It prohibits both discrimination by the government and discrimination by private persons; however, it also allows for affirmative action
to be taken to redress past unfair discrimination.
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
guarantees equality before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
and freedom from discrimination
Freedom from discrimination
The right to freedom from discrimination is an internationally recognised human right and enshrines the principle of egalitarianism. The right to freedom from discrimination is recognised in the Universal Declaration of Human Rights and enshrined in international human rights law through its...
to the people of South Africa. This equality right is the first right listed in the Bill of Rights. It prohibits both discrimination by the government and discrimination by private persons; however, it also allows for affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
to be taken to redress past unfair discrimination.
Text
Under the heading "Equality", the section states:Notable cases
- Brink v Kitshoff NO (1996) — provisions of the Insurance Act which deprived married women of certain benefits of life insurance policies are unfairly discriminatory on the basis of gender and marital status.
- President of the Republic of South Africa and Another v Hugo (1997) — a presidential decision to remit the sentences of imprisoned mothers with young children is not unfair discrimination against similarly-situated fathers.
- Prinsloo v Van der Linde and Another (1997) — a law which imposes a different onus of proof in civil cases involving forest fires does not deny equal protection of the law or amount to unfair discrimination.
- Larbi-Odam and Others v MEC for Education (North-West Province) and Another (1997) — a government policy prohibiting the employment of non-citizens as school teachers is unfair discrimination.
- City Council of Pretoria v Walker (1998) — a municipality's policy of charging a metered rate for water and electricity in formerly white areas but a flat rate per household in formerly black areas, with the effect that the residents of the white area pay higher rates on average, is not unfair discrimination, as the facilities provided to different areas are significantly different. However, the policy of suing to collect payments in arrears from residents of the white areas, but not suing similarly-situated residents of the black areas, is unfair discrimination.
- National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (1998) — the criminalisation of male same-sex sexual relations is unfair discrimination on the grounds of gender and sexual orientation.
- National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (1999) — an immigration law which provides benefits to married couples discriminates on the basis of sexual orientation and must be extended to provide the same benefits to same-sex life partners.
- Hoffmann v South African Airways (2000) — a government-owned airline's policy of refusing to hire HIVHIVHuman immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
-positive people as flight attendants violates the right to equality. - Satchwell v President of the Republic of South Africa and Another (2002) — pension and retirement benefits provided to the spouses of judges must be equally provided to the same-sex life partners of judges.
- S v Jordan and Others (2002) — the gender-neutral criminalisation of prostitution does not discriminate unfairly against women.
- Khosa and Others v Minister of Social Development and Others (2003) — social welfare grants provided to South African citizens must also be provided to non-citizen permanent residents; to do otherwise is unfair discrimination.
- Bhe and Others v Magistrate, Khayelitsha, and Others (2004) — the rule of male primogeniture in the African customary lawCustomary law in South AfricaSouth African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa...
of inheritance discriminates unfairly against women and against younger children. - Minister of Home Affairs and Another v Fourie and Another (2005) — the denial of marriage to same-sex couples is unfair discrimination on the basis of sexual orientation. (See same-sex marriage in South AfricaSame-sex marriage in South AfricaSame-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
.)