SOUTH AFRICAN CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK ON EQUALITY: HOW EFFECTIVE IS IT IN ADDRESSING RELIGIOUS DISCRIMINATION IN THE WORKPLACE?

Abstract

In the South African democratic legal system the imperative of equality is given express effect to by the Constitution. The regime pertaining to the right to equality and the adjunct right not to be unfairly discriminated against is one which is highly regulated in terms of relevant national legislation giving effect to the enforcement of equality and the proscription of religious unfair discrimination as an act which detracts from the right to equality and the inherent worth of human dignity. The ILO and its relevant instruments also play an important role in determining the manner in which national legislation interprets the right to equality in general and the right not to be unfairly discriminated against specifically. This system has given rise to a jurisprudential notion of substantive equality. The Harksen v Lane case has had an appreciable impact on our case law by establishing the so-called three-stage test to determine whether unfair discrimination has taken place. Despite misgivings, the Harksen test continues to pervade our jurisprudence. An examination of three separate decisions pertaining to religious unfair discrimination suggests, however, the absence of a universal test being adopted. Courts, tribunals and fora would be encouraged when adjudicating religious discrimination disputes in the workplace to bring to the determination a context sensitive approach.