Duties of private persons and the right to equality in South Africa
Date
2023
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Witwatersrand, Johannesburg
Abstract
To what extent does the right to equality (and specifically, the right not to be discriminated against unfairly) give rise to duties that are borne by private persons in South African law? This question is morally, legally and politically freighted in South Africa, marked as the country is by gaping inequality and the legacies of centuries of colonial, apartheid and patriarchal oppression that was sustained by not only the government, but also in private spheres. The overall project of this thesis is to map out and normatively justify South Africa’s approach to private anti-discrimination duties in the Constitution, legislation and emerging doctrine. Most surveyed jurisdictions use a test of publicness as a threshold determination of whether an entity is an anti-discrimination duty-bearer. Conversely, in South Africa, the possible class of duty-bearers is much wider – in principle, all persons as well as the state are duty-bearers. I argue that South Africa’s approach is substantiated by a legal endorsement of substantive equality which requires a historically and contextually sensitive analysis of systemic inequalities that cut across public and private spheres. However, although the class of anti-discrimination duty-bearers is broad, this does not mean that private duties exactly mirror the duties of the state. Instead, the scope for private discrimination to be justified – i.e. found to be fair – is generally broader than when the state is the discriminator. Courts are charged with determining the balance to be struck when private actors’ rights compete. I argue that this balance must be struck within PEPUDA’s section 14 fairness enquiry, which to date has been chronically neglected by litigants and courts
Description
Thesis submitted in fulfillment of the requirements for the degree Doctor of Philosophy (law) in the School of Law of the University of the Witwatersrand, 2023
Keywords
Right to equality, Private persons, Reduced inequality, UCTD
Citation
Finn, Meghan. (2023). Duties of private persons and the right to equality in South Africa [PhD thesis, University of the Witwatersrand, Johannesburg]. WireDSpace. https://hdl.handle.net/10539/38756