Discrimination on the basis of a criminal record in South Africa

Date01 December 2014
DOI10.1177/1358229114554735
AuthorLeruri Benjamin Tsweledi,Jamil Ddamulira Mujuzi
Published date01 December 2014
Subject MatterArticles
Article
Discrimination on
the basis of a criminal
record in South Africa:
Is having a criminal
record an analogous
ground?
Jamil Ddamulira Mujuzi and Leruri Benjamin Tsweledi
Abstract
Section 9(3) of the South African constitution prohibits unfair direct or indirect dis-
crimination on grounds, including ‘race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief, cul-
ture, language and birth’. The Constitutional Court has interpreted section 9(3) to
include analogous grounds such as marital status, citizenship and HIV status. There are
many pieces of legislation or regulations in South Africa that prohibit employers from
employing people with criminal records – irrespective of the lack of a nexus between the
criminal record and the job in question. Invoking the test developed by the Constitu-
tional Court on what criteria that should be met for an analogous ground, we argue that
denying a person a job simply because of his criminal record amounts to unfair dis-
crimination. We also discuss the issue of whether such discrimination could be justified
on the basis of section 36 of the constitution.
Keywords
Discrimination, criminal record, South Africa, analogous, ground, limitation
University of the Western Cape, South Africa
Corresponding author:
Jamil Ddamulira Mujuzi, Faculty of Law, University of the Western Cape, Cape, South Africa.
Email: djmujuzi@gmail.com
International Journalof
Discrimination and theLaw
2014, Vol. 14(4) 244–256
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229114554735
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