MOKGORO J
characteristic of personhood not alterable by conscious action and in some
cases not alterable except on the basis of unacceptable costs. It is also true, as
was noted in Larbi-Odam, that in the South African context individuals were
deprived of rights or benefits ostensibly on the basis of citizenship, but in
reality
in
circumstances
where
citizenship
was
governed
by race.
Differentiation on the grounds of citizenship is clearly on a ground analogous
to those listed in section 9(3) and therefore amounts to discrimination.76
[72]
With this said, one must now determine whether that discrimination is
unfair. The determining factor regarding the unfairness of the discrimination is
its impact on the person discriminated against.77 Relevant considerations in
this regard include:
“(a) the position of the complainants in society and whether they have
suffered in the past from patterns of disadvantage, whether the discrimination
in the case under consideration is on a specified ground or not;
(b) the nature of the provision or power and the purpose sought to be
achieved by it. If its purpose is manifestly not directed, in the first instance,
at impairing the complainants in the manner indicated above, but is aimed at
achieving a worthy and important societal goal, such as, for example, the
furthering of equality for all, this purpose may, depending on the facts of the
particular case, have a significant bearing on the question whether
complainants have in fact suffered the impairment in question. . . .
(c) with due regard to (a) and (b) above, and any other relevant factors, the
extent to which the discrimination has affected the rights or interests of
complainants and whether it has led to an impairment of their fundamental
76
Id at para 20.
77
Above n 72.
45
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