[122]The textual pointers against the Centre’s argument to the effect that section 9(1) should be interpreted so as to carry virtually the whole burden of securing equality, have been crisply identified in Ackermann J’s judgment.[1] There are, I believe, additional considerations supporting a structured focus on non-discrimination as the heart of implementable equality guarantees:[2] institutional aptness,[3] functional effectiveness,[4] technical discipline,[5] historical congruency,[6] compatibility with international practice[7] and conceptual sensitivity.
- ↑ See above at paragraphs 15–19. It should be noted that the question of substantive socio-economic claims has been directly attended to by means of the express inclusion of a number of socio-economic rights in the Bill of Rights coupled with an indication of the responsibility of the legislature to ensure their realisation within resource possibilities. See sections 26 (housing), 27 (health care, food, water and social security) and 29 (education) of the 1996 Constitution.
- ↑ “We promote equality by reducing discrimination, and we reduce discrimination by reducing the gap between advantage and historic, arbitrary disadvantage.” See Abella AJ in R v M (C) (1995) 30 CRR (2d) 112 at 119.
- ↑ See Nowak and Rotunda Constitutional Law 5 ed (West Publishing Company, St. Paul Minn 1995) at 601.
- ↑ Hogg comments:
“A study prepared in 1988, only three years after the coming into force of s 15 … found 591 cases (two-thirds of which were reported in full) in which a law had been challenged on the basis of s 15. Most of the challenges seemed unmeritorious, and most were unsuccessful; but the absence of any clear standards for the application of s 15 encouraged lawyers to keep trying to use s. 15 whenever a statutory distinction worked to the disadvantage of a client.” in Hogg Constitutional Law of Canada 3 ed (Carswell Professional Publishing, Canada 1992) at 1162.
- ↑ Sections 9(3), (4) and (5) of the 1996 Constitution provide the structure for focused and candid judicial analysis.
- ↑ The extensive list of grounds of discrimination specifically enumerated in section 9(3) underlines the special weight given by the Bill of Rights to combatting unfair discrimination in the many guises it has been wont to adopt.
- ↑ Far from the concept of non-discrimination being weak and negative, Sieghart refers to it as possibly the strongest principle of all to be found in international human rights law. See Sieghart The International Law of Human Rights (Clarendon Press, Oxford 1983), referred to in In re: the Education Bill of 1995 (Gauteng) 1996 (4) BCLR 537 (CC); 1996 (3) SA 165 (CC) at para 71.
