Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)
Author Muyenga Edward Mugerwa-Sekawabe
Affiliations: Graduate LLB Student (University of Cape Town), Justice Dikgang Moseneke Fellow, Legal Writing Center Tutor (University of Cape Town)
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 728 – 735
This note considers the dispute regarding the correct interpretation of s 6 of the Employment Equity Act through an examination of the Labour Appeal Court’s decision in Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC). It concludes that the phrase ‘any other arbitrary ground’ of unfair discrimination should be interpreted narrowly by the courts. The note, through examining the Constitutional Court’s decision in Hugo, illustrates that the requirement of the impairment of dignity in cases of unfair discrimination lacks credibility and should, therefore, be rejected. An alternative approach to establishing unfair discrimination is proposed that follows from the ‘correct’ interpretation of Hugo. Lastly, this alternative approach is applied to the facts in Naidoo to demonstrate that the Labour Appeal Court erred in its decision.