Does Section 4 of Act 24 of 1987

Question

amount to the infringement of the right to equality and
non-discrimination? Discuss with reference to the test laid down in Harksen v Lane
NO. Provide reasons for your answer. Half marks will be awarded

Answer 1

Section 4 of Act 24 of 1987, also known as the Aliens Control Act, allows the Minister of Home Affairs to declare certain groups of people as prohibited immigrants and to deport them from South Africa.

To determine whether Section 4 infringes the right to equality and non-discrimination, we can look at the test laid down in the case of Harksen v Lane. In this case, the Constitutional Court of South Africa held that a law or policy would constitute unfair discrimination if it differentiated between people without a rational connection to a legitimate government purpose, or if it perpetuated or aggravated pre-existing disadvantage or stereotypes. The Court also stated that not every differentiation or distinction would necessarily amount to unfair discrimination; there must be an impact on the dignity or equality of the affected individuals.

Applying this test to Section 4 of Act 24 of 1987, it can be argued that the section does infringe the right to equality and non-discrimination. The provision grants the Minister of Home Affairs broad discretionary power to declare certain groups of people as prohibited immigrants, which could potentially lead to the arbitrary and discriminatory targeting of specific individuals or communities without a rational connection to a legitimate government purpose. This could result in the perpetuation or aggravation of pre-existing disadvantage or stereotypes, as it is subjective and can lead to discrimination based on factors such as nationality, race, or ethnicity.

Furthermore, Section 4 lacks procedural safeguards and transparency, which raises concerns about its potential for abuse. The lack of clear criteria for determining who falls within the scope of prohibited immigrants creates ambiguity and allows for arbitrary decision-making, potentially discriminating against certain individuals or groups.

In conclusion, Section 4 of Act 24 of 1987 could be argued to infringe the right to equality and non-discrimination. The broad discretionary powers granted to the Minister of Home Affairs, lack of clear criteria and procedural safeguards, and potential for arbitrary and discriminatory targeting all indicate a potential violation of the right to equality and non-discrimination as outlined in the Harksen v Lane test.