[18]This does not mean, however, that in all cases the rational connection inquiry of stage (a) must inevitably precede stage (b). The stage (a) rational connection inquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable. I proceed with the enquiry as to whether the differentiation on the ground of sexual orientation constitutes unfair discrimination. Being a ground listed in section 9(3) it is presumed, in terms of section 9(5), that the differentiation constitutes unfair discrimination “unless it is established that the discrimination is fair.” Although nobody in this case contended that the discrimination was fair, the Court must still be satisfied, on a consideration of all the circumstances, that fairness has not been established.
[19] Although, in the final analysis, it is the impact of the discrimination on the complainant or the members of the affected group that is the determining factor regarding the unfairness of the discrimination, the approach to be adopted, as appears from the decision of this Court in Harksen, is comprehensive and nuanced. In Harksen, after referring to the emphasis placed on the impact of the discrimination in his judgment in Hugo, Goldstone J went on to say:
“The nature of the unfairness contemplated by the provisions of section 8 was considered in paragraphs 41 and 43 of the majority judgment in the Hugo case.
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