Not so hunky-dory : failing to distinguish between differentiation and discrimination. Standard Bank of South Africa Ltd v Hunkydory Investments 194 (Pty) Ltd (No 1) 2010 1 SA 627 (C)

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.