n South African Law Journal - Equality and unfair discrimination : refining the Harksen test
|Article Title||Equality and unfair discrimination : refining the Harksen test|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 Rhodes University|
|Publication Date||Jan 2011|
|Pages||479 - 512|
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.
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