How can you prove discrimination is unfair?

WHAT IS DISCRIMINATION?

Discrimination is to show favour, prejudice or bias for or against a person on any arbitrary grounds, for example on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth by an employer.

WHAT IS UNFAIR DISCRIMINATION

Any employer’s policy or practice showing favour, prejudice or bias against employees in terms of the abovementioned grounds and which is not fair can be deemed to be unfair discrimination. There are two forms of discrimination related to ‘unfair discrimination’, namely—

  • Direct discrimination; and
  • Indirect discrimination

Direct discrimination is easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds.

Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds, including race, sex, disability, age and many others. Not all discrimination, however, is unfair. In other words, certain types of discrimination can in fact be fair, according to the act. For example, giving company cars to managers and not to other employees is discrimination but is not unfair discrimination because the discrimination in this case is based on legitimate business reasons and not on the employer’s personal beliefs.

Employers and employees will not develop a clear understanding of the difference between unfair and fair discrimination until they understand what the concept of “unfairness” means. “Unfairness” occurs when an employer’s conduct infringes the employee’s entrenched rights, is one-sided, unnecessary and/ or inappropriate under the circumstances. Unfair discrimination can take many forms. For example, where an employee is unnecessarily sidelined because he/she is disabled this could be unfair discrimination. If an employee is sexually harassed this is a form of unfair discrimination based on sex.

If a worker is paid less than his/her colleagues because he is male or she is female this would constitute prohibited gender discrimination. If a job applicant is unsuccessful because he/she is white this could be found to be unfair on the grounds of race. For example in the case of Consolidated Billing v IMATU (1998, 8 BALR 1049), the employees were turned down for internal appointments because they did not fit the desired racial profile.

Because the internal applicants had already been short-listed and were thus acknowledged to have been suitably qualified for the job, the IMSSA arbitrator found that the failure to appoint the employees to be unfair racial discrimination. As already mentioned, age can also be ground for unfair discrimination. If the employer refuses to appoint a person aged 14 years this is discrimination based on age.

However, it is not unfair discrimination because the law says that employers may not hire employees who are younger than 15 years old. But, other than this, discriminating against an employee or job applicant simply because he/she is “too young” or “too old” will normally constitute unfair discrimination.

It too often happens that an employer tries to get rid of an older employee. This could be for a number of reasons, including: 

  • The employer wants to employ a family member or friend and feels that the older employer has “had his chance and should make way”.
  • The older employee may have “old fashioned” ideas or finds it difficult to learn new technology.
  • The company has been taken over by young management who only want young people to be working in the business.
  • The older employee has become slower, which makes the employer impatient.
  • The employer dislikes the employee.

While some of the above motives may appear to bear some merit, the employer cannot merely get rid of the employee by forcing him/her to retire before the organisation’s normal retirement age. In the case of Evans v Japanese School of Johannesburg (2006, 12 BLLR 1146), the school required the employee to retire at the age of 61 despite the fact that the employment agreement set her retirement age at 65.

The Labour Court found that: 

  • The dismissal was automatically unfair.
  • The employer was required, in terms of the Labour Relations Act, to pay the employee 24 months’ remuneration in compensation for the unfair dismissal. This amounted to R177 144.
  • In addition, the employer was ordered to pay the employee further compensation of R200 000 for breaching the provisions of the Employment Equity Act prohibiting unfair discrimination.

It is not only such crippling court orders that employers must expect if they fail to protect their employees. Damage to the employer’s reputation and industrial relations can have an even worse effect on the employer’s market position, bottom line and long-term viability. These laws and their onerous provisions make it imperative that a comprehensive anti-discrimination strategy is devised by each and every employer.

If you don’t obtain the necessary expertise to develop and implement such a strategy today it could be you appearing in court defending an unfair discrimination charge tomorrow.  

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  • Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted at  or 082-852-2973.
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article

 

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Complete Guide to NSFAS Online Loan Application for South African Students (2025)

If you are a South African student looking to pursue higher education but are facing financial difficulties, the National Student Financial Aid Scheme (NSFAS) is one of the most accessible funding options available. NSFAS provides financial aid in the form of bursaries and loans to qualifying students at public universities and TVET colleges in South Africa.

This guide will walk you through everything you need to know about the NSFAS loan application process, from eligibility requirements to application steps and frequently asked questions.

📌 What is NSFAS?

The National Student Financial Aid Scheme (NSFAS) is a government-funded financial aid scheme aimed at helping students from low- and middle-income households to access tertiary education without the burden of upfront fees.

NSFAS offers both bursaries and income-contingent loans:

  • Bursaries: For eligible students who meet academic and household income criteria (especially for TVET and university students).
  • Loans: For students who do not meet all bursary criteria or who are pursuing postgraduate qualifications not funded under bursary schemes.

✅ Who Qualifies for an NSFAS Loan?

To qualify for an NSFAS loan (especially for postgraduate students or programs not funded under the bursary system), you must:

  • Be a South African citizen.
  • Be financially needy, with a household income of less than R350,000 per year.
  • Have a valid South African ID.
  • Be enrolled or accepted to study at a public university or TVET college.
  • Not be funded through another bursary program that covers all expenses.
  • Maintain satisfactory academic progress (returning students).

📚 Courses Funded by NSFAS

NSFAS primarily funds undergraduate qualifications, but certain postgraduate programs (e.g., PGCE, postgraduate diplomas in education, and professional courses like LLB) may be considered under the NSFAS loan scheme, not bursaries.

If you’re studying:

  • Undergraduate degree or diploma: You are likely eligible for a full NSFAS bursary.
  • Postgraduate study: You may qualify for a loan, depending on the course and funding availability.

📄 Required Documents for NSFAS Application

When applying, make sure you have the following documents scanned and ready:

  1. Certified copy of your South African ID or Smart Card.
  2. Parent(s) or guardian(s) ID documents.
  3. Proof of income (latest payslips, UIF, or affidavit if unemployed).
  4. Consent Form signed by your parent(s)/guardian(s) to allow NSFAS to verify income.
  5. Proof of registration or acceptance at a public institution.
  6. Academic transcripts (for continuing or postgraduate students).

🖥️ How to Apply for an NSFAS Loan Online

Step-by-Step NSFAS Online Application Process (2025)

  1. Visit the NSFAS Website

    Go to: https://www.nsfas.org.za

  2. Create an Account

    • Click on “MyNSFAS” and register your profile.
    • You’ll need a valid email address and South African cellphone number.
    • Choose a strong password and verify your account via email or SMS.

  3. Login and Start the Application

    • After registration, log in to your MyNSFAS account.
    • Click on “Apply” to begin a new application.

  4. Fill in Your Personal Details

    • Input your ID number, name, surname, and other details exactly as they appear on your ID.
    • Provide household income information and living arrangements.

  5. Upload Required Documents

    • Upload all supporting documents in PDF or JPEG format.
    • Each document must be clear and under the size limit specified.

  6. Submit Your Application

    • Review your application for accuracy.
    • Click “Submit” and wait for a confirmation message.

  7. Track Your Application

    • Log in regularly to check your application status.
    • You will be notified via SMS and email at each stage of the process.

🗓️ Important NSFAS Dates (2025)

  • Application Opening Date: September 1, 2025
  • Application Deadline: January 31, 2026
  • Appeals Period: February 2026 (if rejected)
  • Disbursement: After registration and approval

Note: Dates are subject to change; always confirm on the official NSFAS website.

💸 What Does the NSFAS Loan Cover?

NSFAS funding typically includes:

  • Tuition fees
  • Registration fees
  • Accommodation (if living away from home)
  • Meals and transport
  • Learning materials (e.g., textbooks)

For loans, repayment is only required once you start working and earn above a threshold (around R30,000 annually, but subject to change).

🔄 NSFAS Loan Repayment

Repayments are:

  • Income-contingent – you only repay when you can afford to.
  • Administered by DHET (Department of Higher Education and Training).
  • Interest-bearing, but interest rates are low and favorable.

You can also apply for a partial loan conversion to a bursary if you perform well academically.

🔁 How to Appeal a Rejected NSFAS Application

If your application is rejected, you may submit an appeal via your MyNSFAS portal:

  1. Log into your MyNSFAS account.
  2. Click on “Track Funding Progress”.
  3. If rejected, click on “Submit Appeal”.
  4. Upload any missing or corrected documents.
  5. Provide a clear explanation or motivation.

📱 NSFAS Contact Information

📝 Final Tips Before Applying

  • Apply early to avoid system overload near the deadline.
  • Use your own email and cellphone number (do not use someone else’s).
  • Double-check that all your documents are certified and legible.
  • Keep a copy of your submission confirmation for reference.

By following this guide, you can confidently apply for NSFAS funding and move one step closer to achieving your academic and career dreams—without the burden of immediate financial pressure.

 

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