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The meaning of unfair discrimination in South Africa

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The meaning of discrimination is important to all who live in South Africa, particularly considering the country’s historical and political context, says Dr. Johannes van der Walt, associate designate, employment & compensation practice at Baker McKenzie in Johannesburg.

Consequently, he explores the meaning of discrimination, as contemplated in section 9(3) and section 9(4) of the Constitution of the Republic of South Africa, 1996 (Constitution) and section 6 of the Employment Equity Act (EEA).

Section 6(1) of the EEA reads as follows:

No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.” [own emphasis]

The Labour Court (LC), in its recent judgment of Naidoo v Parliament of the Republic of South Africa (Naidoo), handed down on 12 December 2018, answered an important (but until now, elusive) legal question: what is the meaning of “any other arbitrary ground“?

The Naidoo judgment aside, the meaning of “any other arbitrary ground“, must be informed by the meaning of discrimination in the constitutional sense.


What is unfair discrimination?

Differentiation between people or categories of people lies at the heart of the South African equality jurisprudence, generally, and section 9 rights, in particular. The right to equality (i) seeks to address the mischief created by legally prohibited differentiation and (ii) remedy its consequences.

Only once this fundamentality of equality is understood and appreciated can we speak the language of equality and, thereby, attribute meaning to the term discrimination.

Firstly, the purpose of the right to equality is a concern with and a prohibition of any rule or conduct differentiating between people or categories of people that constitutes unequal treatment or unfair discrimination in the constitutional sense.

Secondly, equality is concerned with and influenced by a recognition that the unjust consequences of prolonged unfair discrimination requires rectification – through the auspices of fair discrimination – failing which the consequences of unjust hegemonic and bigoted treatment of people will reign supreme. Equality delayed is equality denied.

The focus of this article is the prohibition of any rule or conduct differentiating between people or categories of people that constitutes unfair discrimination.

This prohibition is known as the prohibition against unfair discrimination and, in this regard, section 9(4) of the Constitution is relevant and provides that:

No person may unfairly discriminate directly or indirectly against anyone on one or more grounds [including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth].


Differentiation vs discrimination

To ensure effective governance and harmonisation of the interests of all inhabitants, and for the common good, the South African government must regulate the lives of its people. Such regulation is not possible without some differentiation and classification of people, which treats people differently and impacts people differently.

The law differentiates between categories of people on many scores, which is unobjectionable and often unavoidable. A few examples include: the levels of income at which the rate of the tax assessed is fixed; ages when, or the length of employment before, pensions become payable; and the criteria for entitlement to the benefits of social welfare.

Discrimination, as opposed to mere differentiation, has acquired a pejorative meaning within South Africa, in that for differentiation to constitute discrimination, the ground(s) upon which persons or categories of persons are differentiated from each other must have the potential to impair human dignity.

It is trite that the grounds listed in the Constitution have one characteristic in common; namely, these grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity.

To determine whether conduct constitutes discrimination, one must objectively determine whether the ground upon which people or categories of people are differentiated between has the potential to impair the fundamental human dignity of the persons or to affect them adversely in a comparably serious manner.

Revisiting the meaning of “any other arbitrary ground“, for a ground to qualify as such, it must objectively be a ground that has the potential to impair the fundamental human dignity of persons or to affect them adversely in a comparably serious manner.


Naidoo v Parliament of the Republic of South Africa

In Naidoo, the LC could not have interpreted the phrase “any other arbitrary ground” to mean anything else, since (i) the EEA is what is commonly referred to as ‘constitutionally mandated legislation’ and (ii) the EEA is contemplated in section 9(2) of the Constitution and its purpose is to give effect to the right to equality, which is inclusive of the prohibition against unfair discrimination.

In Naidoo, the Applicants are members of the Parliamentary Protection Services (PPS) and employed by Parliament (Respondent) as protection officers. In 2015, the capacity of the PPS was enhanced and two new positions were formed; namely, Control: Chamber Support Officer (CCS) and Chamber Support Officer (CSO). The appointment process was completed in two phases.

Phase 1 entailed the creation of the new positions for which external candidates of the South African Police Services (SAPS) were invited to apply, since the existing PPS members did not have the necessary capabilities. A total of 37 appointments were made from the ranks of members of the SAPS and they were appointed on salaries higher than those earned by the Applicants.

The remainder of the positions were earmarked to be filled from the ranks of the PPS, once certain processes, including training and mentoring, were completed. Arising from this, the Applicants have brought a wage discrimination claim in terms of the provisions of section 6(4) of the EEA.

Section 6(4) of the EEA provides that a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in section 6(1) of the EEA, is unfair discrimination.

In summary, the Applicants’ pleaded case was that the wage disparities constitute discrimination on an arbitrary ground and that those wage disparities are capricious, unfair, unreasonable, and unjustifiable. The grounds for arbitrary discrimination advanced by the Applicants were nepotism and length of service.


The court’s findings

The LC, following reasoning similar to which is set out above, held that the “test for whether discrimination is established, is … whether, objectively [considered], the ground [on which there is differentiated] is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner” [own emphasis].

The LC went on to hold that the Applicants could not succeed in their claim, since they were unable to show that the grounds, as per their pleaded case, qualify as an arbitrary ground analogous to the listed grounds.

The LC’s conclusion is based on the ‘fact’ that the pleaded grounds (nepotism and length of service) “have nothing to do with attributes or characteristics which make the Applicants who they are and they do not impair upon human dignity in a comparable manner to a listed ground“.

The LC also held that the Applicants “failed to allege that the reason for differentiation is some characteristic that impacts upon their human dignity” and did “no more than attempting to describe the difference in pay as ‘arbitrary’, ‘capricious’, ‘unfair’, ‘unreasonable’ and ‘unjustifiable’“.

Although the LC’s finding as to nepotism is questionable, to say the least, it is important to realise that a complainant must succinctly and precisely set out (identify and define) the ground on which discrimination is alleged and that this ground is an arbitrary ground because it has the potential to impair the complainant’s human dignity.

In conclusion, we as South Africans should not conduct ourselves in such a manner that would differentiate between people on a ground that has the potential to impair a person’s human dignity. Simply put, do not differentiate or make distinctions between people that can negatively affect another’s sense of self-worth.


The author of this article has intentionally not addressed the element of unfairness contained in the prohibition against unfair discrimination, since this article concerns the meaning of discrimination, which hinges on grounds that have the potential to impair a person’s human dignity, Baker McKenzie said.

“We have established that no South African ought to differentiate between people or categories of people on any ground that has the potential to impair another’s human dignity. In the next instalment, focus is placed on fairness, which in turn, requires assessment of the impact of the discrimination a complainant to determine whether his or her human dignity has in fact been impaired.”


Read: What the law says about depression and the workplace

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Riot police squads intervene as pro-Israel and pro-Palestinian protesters clash in Montreal

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People wave flags atop cars in traffic during a demonstration to voice support for the people of Palestine, at Toronto City Hall in Toronto, Ontario, Canada, on 15 May 2021.


People wave flags atop cars in traffic during a demonstration to voice support for the people of Palestine, at Toronto City Hall in Toronto, Ontario, Canada, on 15 May 2021.

  • Violence
    between pro-Israel and pro-Palestine protesters in Montreal was condemned by
    Canadian Prime Minister Justin Trudeau.
  • Montreal’s
    city police force intervened and declared the protests illegal after tensions
    heightened and clashes broke out.
  • Israeli
    strikes killed 42 Palestinians in the Gaza Strip on Sunday, the worst daily
    toll in almost a week of clashes.

Montreal
– Canadian Prime Minister Justin Trudeau on Sunday condemned the violence and
“despicable rhetoric” that marked several weekend protests throughout
the country, after clashes between pro-Israel and pro-Palestinian protesters in
Montreal.

The
worst violence in years, sparked by unrest in Jerusalem, is raging between the
Jewish state and Islamist militants.

Israeli
strikes killed 42 Palestinians in the Gaza Strip on Sunday, the worst daily
toll in almost a week of deadly clashes.

Speaking
after protests in Montreal, Trudeau condemned what he said was “despicable
rhetoric and violence we saw on display in some protests this weekend”.

While
insisting on the “right to assemble peacefully and express themselves
freely in Canada”, Trudeau stressed in a tweet that there was no tolerance
for “antisemitism, Islamophobia, or hate of any kind”.

Earlier
on Sunday, Montreal police used tear gas following clashes between pro-Israel
and pro-Palestinian protesters.

Several
hundred demonstrators, draped in Israeli flags, had gathered in a central
Montreal square to express solidarity with the Jewish state.

‘Protesting is a right’

Although
the protest started peacefully, tensions ratcheted up with the arrival of
pro-Palestinian demonstrators and clashes soon broke out.

The
SPVM, Montreal’s city police force, declared the protests illegal, and squads
of riot police intervened, using tear gas to separate and disperse the two
groups, according to an AFP journalist at the scene.

The
police spent much of the afternoon in pursuit of the pro-Palestinian
protesters, who spread out and regrouped in commercial streets in the city centre.

Following
the clashes, Montreal Mayor Valerie Plante said on Twitter that
“protesting is a right”, but that “intolerance, violence and
anti-Semitism have no place here”.

She said:

Montreal is a city of peace.

Several
thousand pro-Palestinian demonstrators had gathered on Saturday in central
Montreal to denounce what they said were Israeli repression and “war
crimes” in Gaza.

“Terrorist
Israel”, some protesters chanted, while others held up a banner that read,
“Stop the genocide of Palestinian children”.

Pro-Palestinian
protests happened the same day in multiple Canadian cities, including Toronto,
Ottawa and Vancouver.


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Peter Thiel Helps Fund an App That Tells You What to Do

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“How would you feel about being able to pay to control multiple aspects of another person’s life?” asks the BBC.

“A new app is offering you the chance to do just that.”

When writer Brandon Wong recently couldn’t decide what takeaway to order one evening, he asked his followers on social media app NewNew to choose for him. Those that wanted to get involved in the 24-year-old’s dinner dilemma paid $5 (£3.50) to vote in a poll, and the majority verdict was that he should go for Korean food, so that was what he bought…

NewNew is the brainchild of Los Angeles-based entrepreneur Courtne Smith. The app, which is still in its “beta” or pre-full release stage, describes itself as “a human stock market where you buy shares in the lives of real people, in order to control their decisions and watch the outcome”. For many of us that sounds a bit ominous, but the reality is actually far less alarming. It is aimed at what it calls “creators” — writers, painters, musicians, fashion designers, bloggers etc. It is designed as a way for them to connect far more closely with their fans or followers than on other social media services and, importantly, monetise that connection…

Whenever a vote is cast the creator gets the money minus NewNew’s undisclosed commission… In addition to voting, followers can also pay extra — from $20 — to ask a NewNew creator to do something of their choosing, such as naming a character in a book after them. But the creator can reject all of these “bids”, and if they do so then the follower doesn’t have to part with the money…

Co-founder and chief executive Ms Smith, a 33-year-old Canadian, has big plans for NewNew, and has some heavyweight backers. Investors include Peter Thiel, the billionaire co-founder of PayPal, and the first outside person to put money into Facebook. Others with a stake in the business include leading US tech investment fund Andreessen Horowitz, and Hollywood actor Will Smith (no relation to Courtne). Snapchat has also given technical support.

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Sandpapergate will haunt Australia cricket forever: ex-bowling coach

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Cameron Bancroft. (Photo by Brenton Geach - Gallo Images/Getty Images)


Cameron Bancroft. (Photo by Brenton Geach – Gallo Images/Getty Images)

The 2018 ball-tampering scandal will haunt Australian cricket forever, much like the infamous underarm delivery of 40 years ago, the team’s former bowling coach David Saker said on Monday.

Saker was responding to opening batsman Cameron Bancroft suggesting that Australia’s bowlers knew about the plan in Cape Town to alter the ball which earned him a nine-month ban and rocked the game.

Saker was Australia’s bowling coach when Bancroft was caught trying to rough up the ball with sandpaper during the third Test against South Africa.

While refusing to be drawn on who knew what, Saker said “the finger-pointing is going to go on and on and on”.

“It’s like the underarm, it’s never going to go away,” he told Fairfax Media, referring to a 1981 incident when Trevor Chappell bowled underarm to ensure New Zealand lost a one-day match at the Melbourne Cricket Ground.

The notorious delivery is still cited in New Zealand and in cricketing circles as a prime example of unsporting conduct.

However, the ball-tampering scandal – dubbed “sandpapergate” – had a greater impact on Australian cricket, with the then-captain Steve Smith and his deputy David Warner suspended for a year from all cricket and stripped of their leadership roles.

Darren Lehmann also quit as coach and all the top brass from Cricket Australia left after a scathing review blasted their “arrogant and controlling” win-at-all-costs culture.

No one else among the team or coaching staff was held to account but Bancroft’s remarks in an interview with The Guardian newspaper hinted that the team’s bowlers at least knew about the plan.

“Obviously what I did benefits bowlers and the awareness around that, probably, is self-explanatory,” he said.

Saker added: “There was a lot of people to blame. It could have been me to blame, it could have been someone else. It could have been stopped and it wasn’t, which is unfortunate.

“Cameron’s a very nice guy. He’s just doing it to get something off his chest … He’s not going to be the last.”

In response, Cricket Australia said that if anyone had new information, they would look into it.

Saker said he was not opposed to a fresh investigation but added “I just don’t know what they’re going to find out.”

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Mexico’s Andrea Meza crowned Miss Universe

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Miss Universe Andrea Meza


Miss Universe Andrea Meza

UPDATE:

MISS UNIVERSE 2020/2021 IS ANDREA MEZA FROM MEXICO:


UPDATE:

THE MISS UNIVERSE 2020/2021 TOP 5:

1. Mexico

2. India

3. Brazil

4. Dominican Republic

5. Peru


UPDATE:

HERE ARE THE MISS UNIVERSE 2020/2021 TOP 10 CONTESTANTS:

1. Jamaica 

2. Dominican Republic 

3. India

4. Peru 

5. Australia 

6. Puerto Rico

7. Thailand

8. Costa Rica

9. Mexico

10. Brazil


UPDATE:

MISS UNIVERSE TOP 21 IN SWIMWEAR:


UPDATE:

MISS UNIVERSE TOP 21: 

1. Columbia

2. Peru 

3. Australia 

4. France

5. Myanmar

6. Jamaica 

7. Mexico 

8. Dominican Republic 

9. USA

10. Indonesia 

11. Argentina 

12. India

13. Curaçao

14. Puerto Rico

15. Phillipines 

16. Brazil

17. Great Britain

18. Nicaragua

19. Thailand 

20. Costa Rica

21. Vietnam


 UPDATE:

MISS UNIVERSE SOUTH AFRICA NATASHA JOUBERT WALKS THE STAGE AT MISS UNIVERSE 2020/2021:


74 contestants will compete for the title of Miss Universe on 16 May in Hollywood, Florida. 

The Miss Universe pageant takes place on 16 May in the US (02:00 to 05:00 on 17 May SA time). The show will be broadcast live on 1 Magic (DStv Channel 103) with a repeat at 21:30. 

Reigning Miss Universe Zozibini Tunzi of South Africa will crown her successor at the end of the event.

Representing South Africa is Natasha Joubert, and South Africans are hoping for the “magic double” – back-to-back consecutive wins, which has only happened once before in the pageant’s history.

Natasha wowed crowds at the national costume competition last week and on Friday impressed during the preliminary round

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Miss Mexico crowned Miss Universe 2021

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By AFP Time of article published 16m ago

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Washington – Miss Mexico was crowned Miss Universe on Sunday in Florida, after fellow contestant Miss Myanmar used her stage time to draw attention to the bloody military coup in her country.

Sunday night marked the Miss Universe competition’s return to television, after the pageant was cancelled in 2020 for the first time due to the coronavirus pandemic.

Andrea Meza, 26, finished first ahead of the Brazilian and Peruvian finalists in a flashy televised event, hosted by American actor Mario Lopez and television personality Olivia Culpo.

Former Miss Universe contestants Cheslie Kryst, Paulina Vega and Demi-Leigh Tebow (who won the title in 2017) served as competition analysts and commentators, and a panel of eight women determined the winner.

Dressed in a sparkling red evening gown, Meza tearfully walked the catwalk as Miss Universe for the first time, before rushing back for a group hug with the other competitors.

Meza beat more than 70 contestants from around the globe in the 69th installment of Miss Universe, which was held at the Hard Rock Hotel & Casino in Hollywood, Florida.

In the days leading up to the final competition, Miss Myanmar Thuzar Wint Lwin, who made the top 21, made waves when she used her time in the spotlight to bring attention to the coup in her country.

“Our people are dying and being shot by the military every day,” she said during her biographical video, which showed photos of her taking part in the anti-coup protests. “Therefore I would like to urge everyone to speak out about Myanmar.”

Natasha Joubert, Miss Universe South Africa 2020 competes on stage in Ema Savahl swimwear during the MISS UNIVERSE® Preliminary Competition.

She also won the award for best national costume: during that competition segment on Thursday, she wore an outfit beaded in traditional Burmese patterns and held up a sign that said, “Pray for Myanmar.”

Myanmar has been in uproar since February 1, when the army ousted civilian leader Aung San Suu Kyi.

At least 796 people have been killed by security forces since then, according to a local monitoring group, while nearly 4 000 people are behind bars.

Miss Singapore Bernadette Belle Ong – who did not make the top 21 – also used the national costume portion to make a political statement.

Dressed in a glittering red bodysuit and matching thigh-high boots, she turned around to reveal her cape – in the colours of the Singaporean flag – was painted with the words “Stop Asian Hate.”

“What is this platform for if I can’t use it to send a strong message of resistance against prejudice and violence?” she wrote on Instagram alongside pictures of her outfit.

The United States in particular has seen a surge in anti-Asian violence in the past year, which activists have blamed on former president Donald Trump’s rhetoric, especially his repeated description of Covid-19 as the “China virus.”

The pageant has also drawn criticism in the past for objectifying the contestants.

In recent years, the competition has shifted image, focusing more on female empowerment and activism.

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