Small steps to equal dignity: the work of the South African equality courts
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68920 , vital:29339 , http://www.equalrightstrust.org/ertdocumentbank/ERR7_kruger.pdf
- Description: Publisher version , Introduction: “The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.” Given the foundational role of equality in the South African constitutional framework, the drafters of the South African Constitution (the Constitution) directed the South African Parliament (Parliament) to enact legislation to “prevent or prohibit unfair discrimination” between individuals within three years of the enactment of the Constitution.3 Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) within two days of the constitutional deadline.4 The Equality Act, as the title indicates, addresses the promotion of equality on the one hand, and provides for reactive measures where the equality right is breached, on the other. The reactive provisions include the prohibition of unfair discrimination and related infringements of the equality right. The Equality Act expressly provides for the enforcement of its provisions in specifically created equality courts. The majority of the reactive provisions of the Equality Act have been operational since 16 June 2003. More than a decade after the enactment of the legislation, the promotional aspects of the Equality Act are yet to come into operation. This article focuses on the reactive provisions of the Equality Act by providing a snapshot of the work of selected South African equality courts for the period from June 2003 to December 2007 insofar as complaints of racism are concerned. In order to contextualise the application of the Equality Act, the article provides a brief overview of the reactive provisions of the Equality Act and the mechanisms for its enforcement.
- Full Text: false
- Date Issued: 2011
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68920 , vital:29339 , http://www.equalrightstrust.org/ertdocumentbank/ERR7_kruger.pdf
- Description: Publisher version , Introduction: “The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.” Given the foundational role of equality in the South African constitutional framework, the drafters of the South African Constitution (the Constitution) directed the South African Parliament (Parliament) to enact legislation to “prevent or prohibit unfair discrimination” between individuals within three years of the enactment of the Constitution.3 Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) within two days of the constitutional deadline.4 The Equality Act, as the title indicates, addresses the promotion of equality on the one hand, and provides for reactive measures where the equality right is breached, on the other. The reactive provisions include the prohibition of unfair discrimination and related infringements of the equality right. The Equality Act expressly provides for the enforcement of its provisions in specifically created equality courts. The majority of the reactive provisions of the Equality Act have been operational since 16 June 2003. More than a decade after the enactment of the legislation, the promotional aspects of the Equality Act are yet to come into operation. This article focuses on the reactive provisions of the Equality Act by providing a snapshot of the work of selected South African equality courts for the period from June 2003 to December 2007 insofar as complaints of racism are concerned. In order to contextualise the application of the Equality Act, the article provides a brief overview of the reactive provisions of the Equality Act and the mechanisms for its enforcement.
- Full Text: false
- Date Issued: 2011
Equality and unfair discrimination: refining the Harksen test
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
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