The following questions will provide clarity on some of the legal terms you will encounter throughout this WiseUp Newsletter.

Question: What is discrimination?

Answer: > Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.

> Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

> For example, a female job applicant cannot be refused for a position purely on the fact that she is pregnant.

> Any form of discrimination on these grounds in section 9 is generally considered as automatically unfair.

Question: Can discrimination be fair?

Answer: > Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.

> For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.

> Other examples of fair discrimination can be seen in the workplace, for example, discrimination based on affirmative action to promote employment equity; or a differentiation between inherent requirements (skills and qualifications needed) for a certain position.

Question: Are the human rights of undocumented children in South Africa impacted?

Answer: > Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.

> Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).

> It is from these human rights where two of the most concerning infringements of undocumented children's human rights arise:

- The right to a name and nationality from birth (section 28).

- The right to a basic education and not to be refused reasonable access to education.

> A High Court ruling has declared certain clauses of the of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children's right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children's human rights.

Question: Are mandatory vaccinations infringing on human rights?

Answer: > Section 12(2) of the Constitution provides that every person has the right of security in and control over their body and the right not to be subjected to medical or scientific experiments without their informed consent.

> Although section 12(2) of the Constitution provides a person the right to make decisions on his/her health and not being subject to experimental drugs without their consent, it is subject to limitations.

> Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Therefore, the Government may mandate vaccinations if it is in the best interest of its citizens as it would be a reasonable and justifiable measure in protecting their health and wellbeing.

> It is still unclear if vaccinations will be made mandatory and whether it will withstand the tests for limitation of human rights, but it remains a possibility if it can be justified.

Did you know…Not all forms of discrimination are considered as automatically unfair.