FUR2601 Assignment 1 (COMPLETE
ANSWERS) Semester 1 2026 - DUE 27
March 2026
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Email:
,Based on the scenario presented, the school must be advised that its admissions policy, which
excludes Ms Dlamini on the basis of sex, constitutes a limitation of her right to equality. For this
limitation to be constitutionally valid, the school must prove that the exclusion is justifiable
according to the criteria set out in section 36 of the Constitution. Based on the facts provided and
the principles of South African constitutional law, the school's justification is unlikely to succeed
because it cannot meet the stringent requirements of reasonableness and proportionality.
1. The Legal Framework: Proving Justifiability Under Section 36
Section 9 of the Constitution guarantees the right to equality and prohibits unfair discrimination,
including discrimination on the ground of sex. The scenario states we must accept that section
12(6) of the Schools Act, which allows for single-sex schools, amounts to unfair discrimination.
The question, therefore, is not *whether* there is discrimination, but whether that discrimination
can be justified.
Section 36(1) of the Constitution, the limitations clause, provides the test for justification. It
states that rights may be limited only by a law of general application, and only to the extent that
the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality, and freedom. The party seeking to justify the limitation (in this case, the
school) bears the burden of proof.
The Constitutional Court has established that this requires a proportionality analysis, balancing
the nature and importance of the right against the purpose and effects of the limitation. The
factors courts consider include:
- The nature of the right.
- The importance of the purpose of the limitation.
- The nature and extent of the limitation.
, - The relation between the limitation and its purpose.
- Less restrictive means to achieve the purpose.
2. Application to Pretoria Technical High School for Boys
The school must demonstrate that its discriminatory policy is a proportional response to a
legitimate government purpose. The arguments raised by the principal must be weighed against
the severity of the rights infringement.
• Purpose of the Limitation: The purpose is to maintain the school as a historically single-
sex institution. While preserving tradition and institutional character may be a legitimate
aim, its importance must be scrutinized against the constitutional commitment to gender
equality.
• Nature and Extent of the Limitation: This is a severe limitation. It completely excludes
an individual from an educational institution based on a protected characteristic—her sex.
This directly implicates her dignity and her right to receive education in the school of her
choice. As the Constitutional Court has affirmed, discrimination on listed grounds, such
as sex, is presumptively unfair.
• Relation Between Limitation and Purpose: The school's arguments regarding
infrastructure and curriculum are weak. As a public-school receiving state funding, it has
a constitutional duty to transform and adapt. The fact that locker rooms and sports fields
were "exclusively designed for male learners" is a practical problem, but not a
constitutional justification for ongoing discrimination. A public resource, funded by all
taxpayers including women, cannot be reserved for one sex simply because of its
historical design.
• Less Restrictive Means: This is the most critical factor. The school's argument that there
is a mixed-sex school 10km away is not a justification for its own discrimination, but
ANSWERS) Semester 1 2026 - DUE 27
March 2026
For assistance contact
Email:
,Based on the scenario presented, the school must be advised that its admissions policy, which
excludes Ms Dlamini on the basis of sex, constitutes a limitation of her right to equality. For this
limitation to be constitutionally valid, the school must prove that the exclusion is justifiable
according to the criteria set out in section 36 of the Constitution. Based on the facts provided and
the principles of South African constitutional law, the school's justification is unlikely to succeed
because it cannot meet the stringent requirements of reasonableness and proportionality.
1. The Legal Framework: Proving Justifiability Under Section 36
Section 9 of the Constitution guarantees the right to equality and prohibits unfair discrimination,
including discrimination on the ground of sex. The scenario states we must accept that section
12(6) of the Schools Act, which allows for single-sex schools, amounts to unfair discrimination.
The question, therefore, is not *whether* there is discrimination, but whether that discrimination
can be justified.
Section 36(1) of the Constitution, the limitations clause, provides the test for justification. It
states that rights may be limited only by a law of general application, and only to the extent that
the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality, and freedom. The party seeking to justify the limitation (in this case, the
school) bears the burden of proof.
The Constitutional Court has established that this requires a proportionality analysis, balancing
the nature and importance of the right against the purpose and effects of the limitation. The
factors courts consider include:
- The nature of the right.
- The importance of the purpose of the limitation.
- The nature and extent of the limitation.
, - The relation between the limitation and its purpose.
- Less restrictive means to achieve the purpose.
2. Application to Pretoria Technical High School for Boys
The school must demonstrate that its discriminatory policy is a proportional response to a
legitimate government purpose. The arguments raised by the principal must be weighed against
the severity of the rights infringement.
• Purpose of the Limitation: The purpose is to maintain the school as a historically single-
sex institution. While preserving tradition and institutional character may be a legitimate
aim, its importance must be scrutinized against the constitutional commitment to gender
equality.
• Nature and Extent of the Limitation: This is a severe limitation. It completely excludes
an individual from an educational institution based on a protected characteristic—her sex.
This directly implicates her dignity and her right to receive education in the school of her
choice. As the Constitutional Court has affirmed, discrimination on listed grounds, such
as sex, is presumptively unfair.
• Relation Between Limitation and Purpose: The school's arguments regarding
infrastructure and curriculum are weak. As a public-school receiving state funding, it has
a constitutional duty to transform and adapt. The fact that locker rooms and sports fields
were "exclusively designed for male learners" is a practical problem, but not a
constitutional justification for ongoing discrimination. A public resource, funded by all
taxpayers including women, cannot be reserved for one sex simply because of its
historical design.
• Less Restrictive Means: This is the most critical factor. The school's argument that there
is a mixed-sex school 10km away is not a justification for its own discrimination, but
