In accordance with the South African Constitution, the Presidential Act No. 17 (“Act”) provides a special pardon to certain categories of persons in prison, including mothers with a child below 12 years of age. The rationale for including mothers within the category of those eligible for the special pardon was based on the notion that this would be in the best interests of children since “[i]t is generally accepted that children bond with their mothers at a very early age and that mothers are the primary nurturers and care givers of young children.”

Respondent, a male, was in prison and had a child younger than age 12 at the time the Act was promulgated. He challenged the Act’s constitutionality on the basis of gender equality, since he did not qualify for the pardon as a result of the Act’s specific reference to “mothers” with children younger than age 12. Respondent therefore argued that the act discriminated against fathers on the basis of gender. The Durban and Coastal Local Division of the Supreme Court agreed with Respondent, and held that the Act violated the constitutional provisions of equality. Appellants appealed the decision to the Constitutional Court.

Justice Mokgoro concurred with the majority decision written by Justice Goldstone but on different grounds. He held that the Act constituted “unfair discrimination” but was justified under Section 33(1) of the Constitution.

Justice O’Regan also concurred with the majority decision, but he held that although the Act was discriminatory, it did not discriminate “unfairly.” Justice O’Regan held that at least two factors should be considered to determine unfairness: the group(s) that have suffered discrimination and the effect of the discrimination on the interests of those concerned. The more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair. Similarly, the more detrimental the discrimination to the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair.

Justice Kriegler dissented; in his view, the notion relied upon by the President, namely that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality. It is both a result and a cause of prejudice—a societal attitude that relegates women to a subservient, occupationally inferior, and unceasingly onerous role. Justice Kriegler further noted that reliance on the generalization that women are the primary caregivers is harmful in its tendency to stunt the efforts of both men and women to form their identities freely. Justice Kriegler reasoned that in very narrow circumstances a generalization—even one that reflects a discriminatory reality—could be vindicated if its ultimate implications were equalizing. However, two conditions would need to be satisfied: namely, a strong indication that the advantages flowing from the perpetuation of a stereotype compensate for obvious and profoundly troubling disadvantages, and a context in which discriminatory benefits were opposite. Justice Kriegler concluded that neither of the conditions was satisfied in the present case. He therefore would have held that the Act was unconstitutional.

Justice Didcott concurred in part and dissented in part, on the basis that the question before the court had become merely abstract as events had overtaken the issue raised.