The public/private divide is largely sustained in anti-discrimination law. Most jurisdictions require that organs of state do not discriminate, but do not extend that duty to non-state actors, save for particular kinds of private persons – typically, those operating in particular spheres of activity. In these jurisdictions, a variant test of publicness operates as a threshold determination of whether an entity bears anti-discrimination duties. Conversely, in South Africa the class of anti-discrimination duty-bearers is wider – in principle, all persons are duty-bearers. What determines whether an anti-discrimination duty is ultimately imposed on a private person is not publicness, but instead a contextually sensitive balancing enquiry at the justification leg. This suggests an attenuated approach to the public/private divide in South African anti-discrimination law. In my paper, I will chart the varying approaches to the public/private divide that emerges from recent jurisprudence.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!