Question

Why do we in South Africa focus on Harksen v Lane NO when the ILO Convention 111 only uses the term “discrimination”

Answer

There is a key tension in South African anti-discrimination law: the constitutional framing of “unfair discrimination” versus the ILO Convention 111’s simpler focus on “discrimination” as inherently wrong.

Why do South African courts focus on “unfair discrimination” (e.g. Harksen v Lane NO) and not treat all discrimination as automatically unlawful — despite the obligations under ILO Convention No. 111?

1. South African Constitutional Framework: “Unfair Discrimination”

The Constitution (section 9) is central:

  • Section 9(3): “The state may not unfairly discriminate…”
  • Section 9(4): No person may unfairly discriminate… and national legislation must prevent or prohibit unfair discrimination.

👉 The term “unfair discrimination” is used intentionally to distinguish between:

  • Discrimination (as a neutral or broad category, including permissible differentiation), and
  • Unfair discrimination (as constitutionally prohibited).

⚖️ Harksen v Lane NO (1997) explained this:

  • Not all differentiation amounts to discrimination.
  • Not all discrimination is unfair.
  • The Court introduced a three-stage test:
    1. Does the conduct differentiate between people?
    2. Is that differentiation based on a prohibited ground?
    3. If so, is it unfair?

This framework was built to balance equality with other rights (e.g. freedom of association, cultural rights, affirmative action).

🌐 2. ILO Convention No. 111: Discrimination as Inherently Wrong

South Africa ratified ILO Convention 111 in 1997. It defines discrimination as:

“any distinction, exclusion or preference… which has the effect of nullifying or impairing equality of opportunity or treatment.”

🛑 No “unfairness” qualifier — all such conduct is wrongful.

✳️ But:

  • International conventions are not automatically self-executing in South African law.
  • They guide interpretation, but do not override the Constitution or national legislation.

📝 In terms of section 39(1)(b) of the Constitution:

Courts must consider international law when interpreting the Bill of Rights — but they are not bound by it.

⚖️ 3. Why the Courts Focus on Unfairness

There are three main reasons:

  1. a) Deliberate Constitutional Choice

The drafters of the Constitution opted for the concept of “unfair discrimination” to allow affirmative action and other forms of positive discrimination (which would technically fall under ILO Convention 111’s broad definition of “discrimination”).

  1. b) Context-Specific Inquiry

South African law requires a contextual test: even if discrimination is established, the question becomes whether it was justifiable in an open and democratic society.

  • E.g. Minister of Finance v Van Heerden upheld affirmative action despite it being “discriminatory”.
  1. c) Recognition of Legitimate Differentiation

Some differentiation is necessary and legitimate:

  • Health insurance premiums by age.
  • Pension eligibility by length of service.
  • Targeted employment policies to redress historical inequality.

🧭 4. So Why Keep Referring to Harksen?

Because Harksen v Lane NO remains the cornerstone of the constitutional equality analysis.

It provides a structured and principled way to distinguish:

  • Lawful differentiation,
  • Mere discrimination, and
  • Unfair discrimination (which is unconstitutional).

Judges still refer to international instruments (including ILO 111), but within the local constitutional matrix.

✅ Summary:

ILO Convention 111 South African Constitutional Law
All discrimination (as defined) is prohibited Only unfair discrimination is prohibited
No explicit room for “fair discrimination” Allows for context-specific justification
Binding as international law Considered, but not directly enforceable
Focuses on effect Focuses on purpose, effect, and context
No exception for affirmative action Affirmative action expressly permitted (s 9(2) of Constitution)

 

Position Paper: Reconciling “Unfair Discrimination” in South African Law with ILO Convention No. 111

Introduction

South Africa is constitutionally committed to the value of equality and non-discrimination. The Constitution, particularly section 9, prohibits “unfair discrimination” and mandates legislative and judicial measures to promote substantive equality. At the same time, South Africa is a signatory to international instruments such as the International Labour Organization (ILO) Convention No. 111 on Discrimination in Respect of Employment and Occupation, which adopts a more categorical approach to discrimination.

This paper explores the apparent tension between the South African jurisprudential approach—focused on “unfair” discrimination—and the ILO framework, which prohibits discrimination simpliciter.

Constitutional Framework and the Harksen Test

The Constitutional Court’s decision in Harksen v Lane NO (1997) established the dominant test for assessing equality claims.

It involves a structured inquiry:

(a) Does the measure differentiate between people or categories of people?

(b) Is the differentiation based on a ground listed in section 9 or a comparable ground?

(c) If so, is the discrimination unfair?

Only if the discrimination is found to be unfair does it become unconstitutional.

The framework allows for nuanced consideration of the impact, context, and purpose of the discriminatory act, including factors like the

  • position of the complainant, and
  • interests affected.

ILO Convention No. 111

ILO Convention 111 defines discrimination as

“any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”

Notably, the Convention does not include a qualifier of “unfairness.”

All forms of discrimination as defined are inherently unlawful. While it allows for special measures to advance equality (affirmative action), it does not adopt the language of fairness.

Key Differences

Feature South African Law ILO Convention 111
Focus Unfair discrimination Discrimination per se
Legal Threshold Requires proof of unfairness Discrimination on prohibited ground is sufficient
Justification Allowed under section 36 or affirmative action Special measures allowed but discrimination remains defined clearly
Judicial Test Contextual and structured (Harksen) No contextual fairness test
Application Broad (state and private actors) Focus on employment and occupation

Harmonising the Two Approaches

Section 39(1)(b) of the Constitution obliges courts to consider international law when interpreting the Bill of Rights. However, international conventions do not have automatic direct effect and must be incorporated into domestic law.

The

  • Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and
  • Employment Equity Act (EEA)

attempt to align with Convention 111 but retain the domestic framing of “unfair” discrimination.

Judges often cite Harksen because it gives a principled methodology for balancing competing rights (e.g. equality vs. freedom of association), evaluating remedial action (affirmative action), and assessing the justification of differential treatment. The use of “unfair” reflects an effort to integrate substantive equality into legal reasoning.

Criticisms and Tensions

Some critics argue that the requirement to prove “unfairness” creates unnecessary burdens on complainants and opens the door to justificatory defences that dilute the principle of non-discrimination. Others note that while differentiation can sometimes be legitimate, the language of “unfair discrimination” risks normalising some forms of structural inequality under the guise of reasonableness.

Conclusion

While there is a clear conceptual difference between South Africa’s emphasis on “unfair discrimination” and the ILO’s blanket prohibition of discrimination, the two are not irreconcilable. South African law allows for international instruments to influence interpretation, but ultimately reflects a constitutional choice to embed substantive equality and a context-sensitive fairness test. The task going forward is to ensure that this test remains robust, does not dilute equality protections, and remains responsive to international obligations.

Recommendations:

  • Greater judicial engagement with ILO Convention 111 in equality jurisprudence.
  • Legislative refinement to clarify alignment between domestic law and international commitments.
  • Training for adjudicators and practitioners on international standards for discrimination.
  • Monitoring and evaluation of fairness tests to ensure they do not excuse systemic inequalities.