n Comparative and International Law Journal of Southern Africa - Affirmative action and non-discrimination : South African law evaluated against international law

Volume 39, Issue 3
  • ISSN : 0010-4051



This article evaluates South African law regarding the relationship between affirmative action and non-discrimination against international law. The United Nations (UN) holds that grounds of distinction introduced in the framework of an affirmative action policy should be 'relevant' to the right to equality in order to be 'non-discriminatory'. While the South African Constitution authorises affirmative action in broad terms for persons or categories of persons disadvantaged by unfair discrimination, the Employment Equity Act (EEA) focusses on race, sex and disability for beneficiaries of affirmative action. The author argues that there is a sufficient connection between these grounds and the right to equality and that the grounds are thus not contrary to the non-discrimination principle laid down by international law. The ground of citizenship as mooted by the case and recently formalised by amended regulations to the EEA, is argued to be similarly relevant in the South African context, but not in an unqualified manner.

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