Minister of Finance and Another v Van Heerden

The respondent, Mr Frederik Jacobus van Heerden, was a member of Parliament before and after the transition to democracy in 1994. As a result, he belonged to both the Closed Pension Fund (CPF), created to secure the pensions of pre-1994 political office-bearers, and the Political Office-Bearers Pension Fund (the Fund), established retrospectively in 1998 for members of the democratic Parliament with effect from 27 April 1994. While all members contributed equally to the Fund, employer contributions between 1994 and 1999 differed by category. Members who were also CPF beneficiaries (Category C) received lower employer contributions than newer parliamentarians (Categories A and B). Van Heerden challenged this differentiation as unfair discrimination. The Cape High Court upheld the challenge and declared the relevant rule unconstitutional. The Minister of Finance and the Fund appealed to the Constitutional Court.

Leave to appeal was granted. The appeal succeeded. The High Court order declaring rule 4.2.1 of the Political Office-Bearers Pension Fund unconstitutional and invalid was set aside, and the challenge was dismissed.

This case is a leading authority on substantive equality and affirmative action under section 9(2) of the Constitution. It clarified that restitutionary measures are not presumptively unfair and do not require justification under section 9(3) and (5) if they meet the section 9(2) criteria. The judgment rejected a formal equality approach and entrenched a transformative understanding of equality central to South African constitutional jurisprudence.