Abstract:
South African discrimination law calls for a clarity of concepts reflected in the
precise use of language. Differentiation is a different and lesser kind of social ill
than discrimination and calls for a different response from courts. This case was
about a clear-cut differentiation between natural persons and juristic persons,
nothing more. The correct measure to adjudge this kind of differentiation is
rationality, not fairness. What this judgment should have done was to clearly
explain (a) what is the purpose of the National Credit Act; (b) whether this
purpose is legitimate; (c) how does the differentiation between natural and
juristic persons link with this purpose; and (d) whether this link is rational. The
court treated each of these steps as self-evident and in the process unnecessarily
invoked the concept of discrimination.
