RECONSTITUTING THE PUBLIC/PRIVATE DIVIDE IN SOUTH AFRICAN ANTI-DISCRIMINATION LAW

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.