Van Heerden v Speaker of Parliament and Others (7067/01, 12 June 2003, unreported) in the High Court of South Africa, Cape of Good Hope Division
Court membership
Judges sitting
Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, Sachs J, Skweyiya J, van der Westhuizen J and Yacoob J
Case opinions
Provided that they conform with section 9(2) of the Constitution, affirmative action measures do not constitute unfair discrimination. (Unanimous.) Rule 4.2.1 of the Political Office-Bearers Pension Fund is a protected measure under section 9(2). (8:3.)
Decision by
Moseneke J (Chaskalson, Langa, Madala, O'Regan, Sachs, van der Westhuizen and Yacoob concurring)
Concurrence
Sachs J
Concur/dissent
Mokgoro J (Sachs and Skweyiya concurring)
Ngcobo J (Sachs concurring)
Minister of Finance and Another v Van Heerden is a landmark decision of the Constitutional Court of South Africa on the constitutionality of affirmative action. Delivered in July 2004, it marked the court's first application of the affirmative action clause in section 9(2) of the Bill of Rights. In a majority judgment written by Justice Dikgang Moseneke, the court held that section 9(2) precludes claims of unfair discrimination against any affirmative action measures pursued in conformance with that provision.
The case arose from a constitutional challenge brought by politician Frik van Heerden against the government pension scheme for political office-bearers. The Cape High Court had found that the rules of the pension scheme discriminated unfairly against politicians who held office during apartheid, but the Constitutional Court unanimously rejected this argument. Writing for the eight-judge majority, Moseneke held that the pension scheme rules constituted a form of affirmative action under section 9(2) and therefore were not required to meet the stricter standard of scrutiny applied in unfair discrimination disputes. The three-judge minority, while agreeing with Moseneke's general interpretation of section 9(2), held that the relevant rules were not protected under section 9(2); however, they also found that the rules did not constitute unfair discrimination.
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