Comparison Table: Direct vs Indirect Discrimination in South African Law

This table outlines the key differences between direct and indirect discrimination under South African law, with reference to constitutional provisions, statutes, and leading case law.

Aspect Direct Discrimination Indirect Discrimination
Definition Unequal treatment explicitly based on a prohibited ground Neutral rule/policy that disproportionately impacts a protected group
Example “No women hired for security jobs” Uniform height requirement disadvantaging women or certain ethnic groups
Statutory Basis Constitution s 9(3), EEA s 6(1), PEPUDA s 1 Constitution s 9(3), EEA s 6(1), PEPUDA s 1
Requirement of Intent Often intentional or conscious Not required — even unintentional effect can suffice
Evidence Needed Show express reliance on a prohibited ground Show disparate impact on a protected group (e.g. statistics, patterns)
Judicial Test Whether the conduct expressly treats someone unequally Whether the effect of neutral conduct leads to inequality
Key Case Law Prinsloo v Van der Linde 1997 (3) SA 1012 (CC)
City Council of Pretoria v Walker 1998 (2) SA 363 (CC)		 Harksen v Lane NO 1997 (11) BCLR 1489 (CC)
Minister of Finance v Van Heerden 2004 (6) SA 121 (CC)
Common Grounds Race, gender, age, religion, disability, etc. Same as direct — any ground listed in Constitution or similar in effect
Unfairness Presumption Presumed unfair if on listed ground (e.g. race, gender) Must assess impact, purpose, and less restrictive means
Justification Possible? Yes – through s 36 limitations clause or showing legitimate purpose Yes – if reasonable and justifiable in an open, democratic society
Relief Available Damages, interdicts, policy reform, reinstatement, etc. Same remedies as direct – depending on the impact and circumstances