Unfair discrimination based on arbitrary ground

Nombila, Elliot Xolani

Title: Unfair discrimination based on arbitrary ground
Creator: Nombila, Elliot Xolani
Subject: Discrimination in employment -- Law and legislation -- South Africa
Subject: Unfair labor practices -- South Africa
Subject: South Africa. -- Employment Equity Act, 1998
Date Issued: 2025-04
Date: 2025-04
Type: Master's theses
Type: text
Identifier: http://hdl.handle.net/10948/72553
Identifier: vital:79237
Description: Section 9 establishes the right to equality and prohibits unfair discrimination, while section 23 ensures fair labor practices, protecting individuals in the workplace. Additionally, section 1(a) underscores the foundational values of human dignity, equality, and the advancement of human rights. These provisions collectively aim to create a just and equitable society, reflecting South Africa’s commitment to uphold and protect the rights of all citizens. EEA serves as a crucial framework for promoting equality and preventing discrimination in the workplace in South Africa. By prohibiting both direct and indirect unfair discrimination, the EEA ensures that individuals can seek recourse if they experience discrimination based on listed grounds such as race, gender, disability and, more. The amendment introduced in 2014, specifically through the Employment Equity Amendment Act 47 of 2013, expanded the scope of the EEA by including the phrase “or any other arbitrary ground”. This addition allows individuals to bring claims based on grounds not explicitly mentioned in the Act, as long as these grounds can be considered analogous to those listed. This change enhances the EEA’s flexibility and responsiveness to various forms of discrimination that may arise in the workplace. Overall, the EEA and its amendments reflect South Africa’s commitment to creating an equitable working environment, aligning with constitutional principles of equality and non-discrimination. The Act not only provides legal recourse for affected individuals but also encourages employers to foster inclusive and fair workplaces. This amendment has led to various interpretations since the Explanatory Memorandum to the amendments does not provide much clarity on the purpose of the particular amendment. The first possible interpretation of the amendment is that it creates a third ground of unfair discrimination. Secondly, the amendment may refer to the requirement of rationality. Thirdly, the amendment may be synonymous to “one or more grounds” or “unlisted grounds”. This study analyzes possible interpretation of the recent amendment to the EEA in light of established principles from the Constitutional Court. It argues that the first interpretation, which suggests that unfair discrimination can be identified solely on arbitrary grounds, is inadequate. The study emphasises that any claim of unfair discrimination must demonstrate not only irrationality but also that the arbitrary ground significantly impairs the complainant’s fundamental human dignity. Furthermore, the analysis finds the second interpretation unnecessary since the concept of unfair discrimination inherently includes the rationality requirement. This leads to the conclusion that the amendment essentially serves as a synonym for utilised grounds. The differentiation made in section 11 of the EEA between listed and arbitrary (unlisted) grounds-reinforces this understanding. Ultimately, the study concluded that the amendment to the EEA should be interpreted as referring specifically to unlisted grounds. Therefore, the criteria for establishing unfair discrimination based on arbitrary grounds remain consistent: the complainant must demonstrate both irrationality and a substantial impairment of human dignity.
Description: Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
Format: computer
Format: online resource
Format: application/pdf
Format: 1 online resource (69 pages)
Format: pdf
Publisher: Nelson Mandela University
Publisher: Faculty of Law
Language: English
Rights: Nelson Mandela University
Rights: All Rights Reserved
Rights: Open Access

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