Special Investigating Units and Special Tribunals Act, 1996
R 385
Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000)Chapter 3 : Burden of Proof and Determination of Fairness or Unfairness14. Determination of fairness or unfairness |
| (1) | It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons. |
| (2) | In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account: |
| (a) | The context; |
| (b) | the factors referred to in subsection (3); |
| (c) | whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned. |
| (3) | The factors referred to in subsection (2)(b) include the following: |
| (a) | Whether the discrimination impairs or is likely to impair human dignity; |
| (b) | the impact or likely impact of the discrimination on the complainant; |
| (c) | the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; |
| (d) | the nature and extent of the discrimination; |
| (e) | whether the discrimination is systemic in nature; |
| (f) | whether the discrimination has a legitimate purpose; |
| (g) | whether and to what extent the discrimination achieves its purpose; |
| (h) | whether there are less restrictive and less disadvantageous means to achieve the purpose; |
| (i) | whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to— |
| (i) | address the disadvantage which arises from or is related to one or more of the prohibited grounds; or |
| (ii) | accommodate diversity. |
