Justifying unfair discrimination: the development of a ‘general fairness defence’ in South African (labour) law

• Jurisdiction: South Africa
• Date: 23 May 2019
• Citation: 2001 Acta Juridica 147
• Author: Ockert Dupper
• Pages: 147-174
• Published date: 23 May 2019

Justifying unfair discrimination: the

development of a ‘general fairness defence’

in South African (labour) law

OCKERT DUPPER*

University of Stellenbosch

I INTRODUCTION

The title of this paper may seem paradoxical. How can it be possible

to justify something that has already been classified as unfair? How-

ever, this is in fact what the law invites us to do, namely to take a

claim about unfair discrimination that is in all other respects valid, and

to allow it to be overridden in the name of some competing objec-

tive.

1

As a result, cases that raise the question of justification inevitably

reflect debate as to what kinds of discrimination are tolerable in any

society.

The Employment Equity Act (EEA) prohibits ‘unfair’ discrimina-

tion.

2

It is now generally accepted that affirmative action and an in-

herent requirement of a job are not the only instances of ‘fair’

discrimination.

3

If the facts of a case do not implicate any of the

two listed defences, employers will nevertheless be given the oppor-

tunity to advance arguments that the discrimination is ‘fair’.

4

To date,

the pronouncements of the Labour Courts and arbitrators on what

constitutes ‘fair’ discrimination have often been contradictory and un-

supported. This has left our law on this issue in a state of uncertainty.

In this chapter, proposals about the parameters of the ‘general fairness’

defence to a claim of unfair discrimination in the workplace will be

made.

For reasons that will be advanced in the body of this chapter, it will

be argued that the standard that should be set regarding ‘fair’ discri-

mination be an exacting one. In other words, the law should allow

other considerations to trump the equality principle only in the nar-

rowest of circumstances. In developing this line of argument, the

chapter will, in part II, consider the structure and basic principles of

* BA (Stellenbosch) LLB (Cape Town) LLM (Harvard) SJD (Harvard); Associate Professor,

Faculty of Law, University of Stellenbosch. I would like to thank Christoph Garbers for his

meaningful comments on an earlier draft of this paper.

1

See S Leader ‘Proportionality and the justification of discrimination’ in J Dine and B Watt

(eds) Discrimination Law: Concepts, Limitations, and Justifications (1996) 110.

2

See s 6(1) of Act 55 of 1998.

3

These are the two listed ‘defences’ contained in s 6(2) of the EEA.

4

Leonard Dingler Employee Representative Council & Others v Leonard Dingler (Pty) Ltd & Others

(1997) 11 BLLR 1438 (LC) at 1448 (hereafter ‘Dingler’).

147

2001 Acta Juridica 147

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discrimination litigation. In examining the structure of a discrimina-

tion claim, consideration will specifically be given to the factors

which, according to the Constitutional Court and the Labour Court,

should be considered in determining the fairness or otherwise of an

employment policy or practice. In part III, arguments in favour of a

strict standard will be advanced, while in part IV some suggestions

regarding the parameters of the proposed strict standard will be made

against the background of developments in European Community

(EC) law. In part V, the manner in which the Labour Courts have

thus far contributed to the development of the general ‘fairness’ de-

fence will be considered.

II THE STRUCTURE OF DISCRIMINATION LITIGATION

5

The Constitution,

6

Labour Relations Act (LRA),

7

and Employ-

ment Equity Act (EEA)

8

prohibit direct or indirect ‘unfair discrimina-

tion’. The notion of ‘unfair discrimination’ was introduced by s 8 of

the interim Constitution and has been retained in the final Constitu-

tion. The same formulation also found favour with the task teams that

drafted the LRA and the EEA. It has been pointed out that this for-

mulation is unusual, because

‘[m]ost constitutional and legislative instruments which outlaw discrimina-

tion have left the pejorative connotation of the word ‘‘discrimination’’ to

speak unaided to those who interpret them’.

9

Commentators initially subscribed to the view that the term ‘dis-

crimination’ in the Constitution has a neutral meaning similar to dif-

ferentiation or classification, and that the pejorative moment lies in the

word ‘unfair’.

10

However, the term has been interpreted by the Con-

stitutional Court on several occasions,

11

and a different view has

5

This section is in large part borrowed from O Dupper and C Garbers ‘The provision of

benefits to and discrimination against same-sex couples’ (1999) 20 ILJ 772 at 778-787.

6

Act 108 of 1996 (ss 9(3) and (4)).

7

Act 66 of 1995 (s 187(1)(f)).

8

Act 55 of 1998 (s 6(1)).

9

J Kentridge ‘Equality’ in Chaskalson et al (eds) Constitutional Law of South Africa (1996) ch 14-

18. Du Plessis and Corder point out that the word ‘unfairly’ was added because, when the

Constitution was drafted, some negotiators were of the view that the term ‘discrimination’ does

not necessarily have only a pejorative meaning, but could also encapsulate the term’s benign

manifestation in the form of justified differential treatment. By simply proscribing ‘discrimina-

tion’, it was argued, ‘differentiation’ or ‘positive discrimination’ could also be excluded. As a

result, the drafters proscribed ‘unfair discrimination’ in order to ensure that only ‘unjustified

differentiation’ would be excluded under s 8(2) of the interim Constitution. See L Du Plessis and

H Corder Understanding South Africa’s Transitional Bill of Rights (1994) 141.

10

See for example Cachalia et al Fundamental Rights in the New Constitution (1994) 28.

11

Brink v Kitshoff NO 1996 (6) BCLR 609 (CC); Fraser v Children’s Court, Pretoria North &

Others 1997 (2) SA 261 (CC); President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC);

Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC); Harksen v Lane NO and Others 1997 (11) BCLR

1489 (CC); Larbi-Odam & Others v MEC for Education (North-West Province) & Another 1997 (12)

BCLR 1655 (CC); East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane TLC and Others 1998 (1)

BCLR 1 (CC).

148 EQUALITY LAW

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