Synopsis:
Application for leave to appeal against High Court decision. Concerned a challenge to the constitutionality of rules of the Political Office-Bearers Pension Fund that provided for differentiated employer contributions in respect of members of Parliament and other political office-bearers. Respondent argued: rules unfairly discriminatory; and Fund not validly established under s 190A of the interim Constitution or s 219 of the Constitution. Applicant contended: permissible affirmative action measure. Unanimously held: leave to appeal granted; appeal upheld; order of the High Court declaring Rule 4.2.1 unconstitutional and invalid set aside. Moseneke J (for the majority) held: legislative and other measures that meet s 9(2) are not presumptively unfair. Differentiation aimed at protecting or advancing disadvantaged persons is warranted if it meets the test of s 9(2). The impugned pension scheme upheld as a restitutionary measure. Sep concurrences: Mokgoro J, Ngcobo J , Sachs J
