elsewhere. This was clearly recognised in Harksen when, in dealing with the purpose of the provision or power as a factor to be considered in deciding whether the discriminatory provision has impacted unfairly on complainants, Goldstone J held:
“If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely, disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair …”[1] (Footnote omitted).
[63]It is clear, moreover, that under section 8(1) of the interim Constitution the inquiry would encompass both direct and indirect differentiation. This must necessarily follow from the reference in section 8(2) to “direct and indirect discrimination”. That was implicitly held in Harksen (where the Court did not have to deal with indirect discrimination) and explicitly in Walker; the latter being a case where indirect discrimination was present and where Langa DP, on behalf of the Court, held that the
- ↑ Above n 17 at para 51(b).
