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.
The Court examined the following issues: (1) whether the president had the power to promulgate the Act, and (2) whether the Act is discriminatory, and is therefore in violation of the constitutional right to gender equality.
Five justices wrote separate opinions (all, except one, concurring in the conclusion that the Act did not violate the Constitution). Justice Goldstone, writing for the majority, held that under Section 82(1) of the interim South African Constitution, the President enjoys the power to issue an act and grant pardon to prisoners. However, such acts must comply with the Constitution. The constitutional principle of equality requires that everyone be afforded equal rights, dignity, and respect before the law. A given law is deemed discriminatory if it differentially affects the rights, dignity, or respect of a given group based on certain enumerated grounds. The Act focuses on three groups of prisoners: disabled persons, young persons, and mothers with children. The Act was prima facie discriminatory unless it is shown that the discrimination was not unfair.
Justice Goldstone noted that it is not enough to say that the impact of the discrimination affected members of a group who were not historically disadvantaged. It must still be shown that in the context of this case, the impact of the discrimination on the people who were discriminated against was not unfair. Justice Goldstone also noted that a concept of unfair discrimination must recognize that, although our goal is a society that affords each human being equal treatment based on equal worth and freedom, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, must require a careful and thorough understanding of the impact of the discriminatory action to determine whether its overall impact is one that furthers the constitutional goal of equality. To determine whether the impact of discrimination is unfair, it is necessary to look not only at the group who has been disadvantaged but at the nature of the power that effected the discrimination, and at the nature of the interests that have been affected by the discrimination. Justice Goldstone concluded that releasing all imprisoned fathers as well as mothers would have been impossible. Moreover, it would have almost certainly led to a public outcry. The Act does not restrict or limit the fathers’ freedom—their freedom was limited because of their conviction. The act merely deprived fathers of an early release to which they had no legal entitlement. Moreover, the act’s exclusion of fathers did not preclude fathers from applying for a presidential pardon based on their individual circumstances. Justice Goldstone concluded that based on all the evidence, the Act did not violate the Constitution.
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.