It is paramount to begin this argument by discussing the difference between formal equality and substantive equality. Formal equality assumes neutrality and equal treatment amongst citizens. Critics have argued that by adopting this approach, historical factors which have placed citizens in dislocated socio-economic contexts are denied. Substantive equality focuses on the effects and the impact and of laws on citizens. Contrary to formal equality, identical treatment is not guaranteed. This concept is remedial-based owing to the fact that it acknowledges the contexts of citizens that have been established owing to historical systemic and ongoing institutionalised discrimination and prejudice, and seeks to improve them in order to ensure that citizens are no longer prevented from enjoying equal opportunities as others. It is for this very reason that the South African judiciary have adopted this approach rather than a formal one. [STATE WHICH ONE IS PROMOTED BY THE LEGISLATION IN QUESTION] Section 9(3) of the Constitution is used when the nature of a ‘legislative provision distinguishes directly or indirectly between groups based on grounds listed in section 9(3) or analogous grounds.’ When used, this section determines whether the differentiation in the impugned legislation results in unfair discrimination on …show more content…
The court stated that in order to establish ‘unfairness’, the court must assess the degree to which the complainant’s human dignity has been impaired, and the degree to which the complainant’s rights and interests have been affected (Harsken). The test of unfairness focuses on ‘the impact of the discrimination on the complainant and others in his or her situation.’ (Harksen). This test requires a contextual analysis of the individual’s position in society, the nature of the provision and the purpose sought to be achieved by