Section 4 of the Act states that a person may not unfairly discriminate against another person on various grounds, including race, gender, and religion. The question here is whether Section 4 amounts to the infringement of the right to equality and non-discrimination, considering the test laid down in Harksen v Lane.
In Harksen v Lane, the Constitutional Court of South Africa established a test for determining whether a law infringes on the right to equality and non-discrimination. The test requires a two-step analysis: first, identifying the differential treatment or impact of the law, and second, assessing whether the differential treatment or impact is unfair or unjustifiable.
Applying this test to Section 4 of the Act, we can see that it does differentiate between individuals based on certain characteristics or grounds. It clearly prohibits unfair discrimination and aims to promote equality. However, the question arises whether this differentiation can be considered unfair or unjustifiable.
One could argue that Section 4 does not infringe on the right to equality and non-discrimination. It establishes a necessary and legitimate measure to protect individuals from unjust treatment based on certain characteristics. By prohibiting unfair discrimination, it promotes equality and ensures that all individuals are treated fairly and equally.
On the other hand, some may argue that Section 4 does infringe on the right to equality and non-discrimination. They might argue that it restricts the freedom of individuals to discriminate based on their personal beliefs or preferences. They may argue that individuals should have the right to choose with whom they associate or conduct business, even if it means discriminating against someone based on certain characteristics.
Ultimately, whether Section 4 infringes on the right to equality and non-discrimination depends on the interpretation and perspective of the individual. While some may view it as a necessary protection against unfair treatment, others may view it as a limitation on personal freedom.
Given the arguments presented, it is not possible to definitively conclude whether Section 4 of the Act amounts to the infringement of the right to equality and non-discrimination without a thorough analysis and consideration of the specific circumstances and context in which it is applied.
Does Section 4 of the Act 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
1 answer