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The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection
Thesis (LLD)--Stellenbosch University, 2025.
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| Format: | Thesis |
| Language: | English |
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Stellenbosch : Stellenbosch University
2025
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| _version_ | 1867613887065489408 |
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| access_status_str | Open Access |
| author | Huysamen, Elsabe |
| author2 | Garbers, Christoph |
| author_browse | Garbers, Christoph Huysamen, Elsabe |
| author_facet | Garbers, Christoph Huysamen, Elsabe |
| author_sort | Huysamen, Elsabe |
| collection | Thesis |
| dc_rights_str_mv | Stellenbosch University |
| description | Thesis (LLD)--Stellenbosch University, 2025. |
| format | Thesis |
| id | oai:scholar.sun.ac.za:10019.1/132474 |
| institution | Stellenbosch University (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:43:16.997Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from SUNScholar — Stellenbosch University Repository |
| publishDate | 2025 |
| publishDateRange | 2025 |
| publishDateSort | 2025 |
| publisher | Stellenbosch : Stellenbosch University |
| publisherStr | Stellenbosch : Stellenbosch University |
| record_format | dspace |
| source_str | SUNScholar — Stellenbosch University Repository |
| spelling | oai:scholar.sun.ac.za:10019.1/132474 The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection Huysamen, Elsabe Garbers, Christoph Stellenbosch University. Faculty of Law. Dept. of Mercantile Law. Discrimination in employment -- Law and legislation -- South Africa Labor laws and legislation - -South Africa Unfair labor practices -- South Africa Affirmative action programs -- Law and legislation -- South Africa Law reform -- Employment -- South Africa UCTD Thesis (LLD)--Stellenbosch University, 2025. Huysamen, E. 2025. The Future of a Prohibition on Indirect Unfair Discrimination as Part of South African Anti-Discrimination Employment Law: A Comparative Reflection. Unpublished doctoral dissertation. Stellenbosch: Stellenbosch University [online]. Available: https://scholar.sun.ac.za/items/56c2de9c-0b9f-4ad3-9d7e-4bcfb7658887 ENGLISH ABSTRACT: The Constitution of the Republic of South Africa, 1996 (“Constitution”) enshrines the right to equality, emphasising “the full and equal enjoyment of all rights and freedoms”. This commitment embodies the principle of substantive equality, which extends beyond mere formal equality by addressing systemic inequities and striving for transformative change. The pursuit of transformative equality is underpinned by two constitutionally mandated mechanisms: affirmative action and the prohibition of unfair discrimination, both direct and indirect. Within this framework, the prohibition of unfair discrimination serves a dual purpose: It establishes a foundation for defending formal equality while simultaneously acting as a transformative tool, particularly in safeguarding against indirect discrimination. In a transformative context, the concept of protection against indirect discrimination specifically is significant as it acknowledges that equal treatment can still perpetuate inequality. The concept has the unique ability to identify hidden barriers and protect against more subtle forms of unfair discrimination, rendering it instrumental in advancing substantive equality and promoting long-term, systemic change. Yet, despite its transformative potential, the application of protection against indirect unfair discrimination in South African employment jurisprudence remains underdeveloped. And even in jurisdictions where the concept has received greater attention (for purposes of this study, the United States of America, Canada and the United Kingdom), it has not significantly advanced substantive workplace transformation. The reasons for this limited success are partly shared across these jurisdictions and partly unique to South Africa. Given the above, the primary objectives of this study are threefold: (i) to explore the protection against indirect discrimination in advancing transformative equality within the South African constitutional framework; (ii) to investigate the reasons for the limited development and application of this concept in South African employment law; and (iii) to assess whether the prohibition of indirect discrimination should be upheld as a distinct legal concept in employment law. These objectives were anchored by the fundamental question guiding the study: what role does the concept stand to play in employment law in SA in future and, if any, to what extent and in what form? The study begins by examining the broader concept of equality – a notion that is both complex and continually evolving. Key questions that are addressed include: What does equality mean? What are the objectives inherent to equality? What values underpin the concept? Following this exploration, the focus shifts to the role of equality within the South African Constitution, specifically the content of the right to equality as provided for in section 9 of the Constitution. This includes an overview of the constitutionally mandated mechanisms for enforcing equality, namely affirmative action and the prohibition of unfair discrimination, with particular attention to protection against indirect forms of unfair discrimination. The study thereafter narrows its focus to the application of the latter concept within South African employment law. It highlights the challenges that have hindered the effective development of the concept, which can be broadly categorised as conceptual and practical obstacles. The South African experience is compared to the development and application of the concept in the United States, Canada, and the United Kingdom, offering a comparative perspective on the concept’s evolution in the aforesaid jurisdictions. The study concludes by presenting suggestions and recommendations on the future role of indirect discrimination within South African anti-discrimination employment law. It also recommends strategies for more effective implementation of the concept. AFRIKAANSE OPSOMMING: Geen opsomming beskikbaar. Doctoral 2025-06-09T12:00:55Z 2025-06-09T12:00:55Z 2025-03 Thesis https://scholar.sun.ac.za/handle/10019.1/132474 en Stellenbosch University vii, 436 pages application/pdf Stellenbosch : Stellenbosch University |
| spellingShingle | Discrimination in employment -- Law and legislation -- South Africa Labor laws and legislation - -South Africa Unfair labor practices -- South Africa Affirmative action programs -- Law and legislation -- South Africa Law reform -- Employment -- South Africa UCTD Huysamen, Elsabe The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title | The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title_full | The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title_fullStr | The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title_full_unstemmed | The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title_short | The future of a prohibition on indirect unfair discrimination as part of South African anti-discrimination employment law : a comparative reflection |
| title_sort | future of a prohibition on indirect unfair discrimination as part of south african anti discrimination employment law a comparative reflection |
| topic | Discrimination in employment -- Law and legislation -- South Africa Labor laws and legislation - -South Africa Unfair labor practices -- South Africa Affirmative action programs -- Law and legislation -- South Africa Law reform -- Employment -- South Africa UCTD |
| url | https://scholar.sun.ac.za/handle/10019.1/132474 |
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