For purposes of this discussion the case of Jooste v Score Supermarket Trading (Pty) Ltd is the lading authority in South Africa. In this case the Applicant was injured in the supermarket where she was employed and instituted action against her employer for damages sustained as a result of her injuries. The employer argued that section 35(1) of COIDA effectively bars an employee from bringing an action against an employer and that the employee was under the circumstances confined to bringing a claim only in terms of the Act, such claim would be confined to pecuniary loss i.e. actual loss and not include damages for pain and suffering.
The High Court found section 35(1) to infringe section 9(1) and section 9(3) of the Constitution and was ruled to be invalid. It was argued that the section violated the equality guarantee in that it denied an employee the right to claim general damages for pain and suffering against an employer while non-employees enjoyed such right at common law.
Ordinarily the common law allows an action for damages to be instituted in respect of any loss suffered as a result of the negligence of another. The Act, however, bars an employee from bringing an action for damages. Instead it provides and guarantees a mechanism by which such an employee may claim from a fund specially created for this purpose. The question in this case was whether such differentiated treatment of employees was a violation of the right to equality.
The Constitutional Court set aside the ruling of the High Court and proceeded to set out the test to be followed. Accepting that there was differentiation between employees and non-employees, the key question was whether there was a rational connection between the differentiation and a legitimate government purpose. It went on to find that there was such a legitimate government purpose, namely to regulate compensation for injury sustained while on duty. On that basis it found that the provisions were not unconstitutional.
Importantly in this case there was no evidence that the differentiation amounted to unfair discrimination. If that were the case, then the party seeking to rely on the measure would have to show it passed the limitation test.
On the question of whether the right to claim in terms of the Act should have existed together with, or as an alternative to, the common law right to claim damages, the court said that was a policy decision which the legislature must take.
This stance is strange especially given Yacoob J’s reasoning in Government of the Republic of South Africa v Grootboom96
Purely from a practical point of view, and while understanding the legal basis of the court’s reasoning, there have been significant time delays in the processing of claims in terms of the Act. The result of this judgment is that the route of the Act is the only route for employees where it was made clear that the court will not prescribe policy to the legislature and the executive, the difference between the decision in Grootboom and Jooste, where ‘the invitation … to make a policy choice under the guise of rationality review
… was firmly declined’, is striking. In this case the court had to decide upon the rationality of an economic policy choice in view of the equality guarantee in section 9(1).
The notion of the acceptability of differentiated treatment was once again confirmed, the test being the existence of a legitimate government purpose. The differentiation could not be arbitrary, irrational or show naked preference.
The court displayed a marked reluctance to get involved in policy issues and clearly stated that its function was not to state whether the scheme chosen by government could be improved. As long as the test set out above was passed, the court would not interfere.
This was not a case of unfair discrimination on one of the listed grounds but one of differentiated treatment. The test laid out by the court presents useful and practical criteria or indicators in determining what differentiation is permissible. It may be said that this is a very easy test for government to pass to simply show the existence of a legitimate government purpose, something relatively easy to do as this case illustrated.
96 2001 (1) SA 46 (CC).
injured on duty. That being the case, measures must be taken to ensure that all claims are handled expeditiously. This is however not the case.
The possibility exists, however, that provisions of the Act could be again challenged, not on the basis of differentiation, but on the basis that such differentiation amounts to unfair discrimination.
Thus, for all intents and purposes, the developing jurisprudence on equality laws draws a distinction between differentiation based on grounds that affect a person’s dignity and worth as a human being and those based on grounds that do not have this effect. In instances where differentiation does not impact on dignity, the applicant is restricted to arguing that there is a violation of section 9(1).
A much more robust approach is adopted when the grounds of differentiation impact on human dignity. The court, by compartmentalising the equality right in this fashion, has clearly signalled that the primary thrust of the equality right is to carefully scrutinise differentiations that impact on dignity. Thus challenges to laws allowing differentiation on grounds that do not impact upon dignity will face strong presumption of constitutionality. Government decisions that do not impact upon dignity such as those that make choices and give effect to its economic policies will be subject to less exacting scrutiny.
It is argued to be the correct approach because a democratic government must be afforded the necessary space to fashion and implement policies aimed at improving the equality of life of people. Given the scope of the Bill of Rights and the many other constraints on the exercise of governmental power, it is probably appropriate that section 9(1) be assigned a quieter role.
Jooste v Score Supermarkets Trading (Pty) Ltd97
97 Ibid.
is an illustration of this attitude. Section 35(1) limits the common law right of employees to claim compensation for injuries sustained at the workplace. Claims have to be instituted within 12 months of the date of the accident and a limit is placed on the amount that could be claimed as compensation. The concern was that the law differentiated between employees and other persons suffering personal injuries and thus infringed section 9(1) of the Constitution.
It appears that the Constitutional Court in S v Ntuli98 is an example of the categorisation not being rationally linked to a government objective. The Constitutional Court had to consider the validity of sections of the Criminal Procedure Act 51 197799 which differentiated between appellants in prison who were not represented and other appellants. Only the former had to obtain a certificate from a judge certifying that there are reasonable grounds for the review prior to pursuing an appeal. The court held that these provisions infringed both the right to have recourse by way of appeal or review to a higher court.100
98 1996 (1) SA 1207 (CC).
99 S 103 read with s 305 of the Criminal Procedure Act 1977.
100 S 25(3)(h) and the right to equality before the law, s 8(1).
The effect of requiring prisoners who were unrepresented to obtain a certificate and not requiring others to do so meant that prisoners who were represented or persons who had been fined or who had received suspended sentences were treated more favourably by the law. Didcott J found that this violated the right to equality; at the very least guarantees to everybody equal treatment by our courts of law. This guarantee was violated by the Act imposing greater burdens upon unrepresented prisoners in pursuing appeals.