a) at least two people or groups must have been treated differently; b) the differentiation must amount to inferior treatment, place the person at a disadvantage, or deprive him or her of (access to) benefits, privileges or rights; c) the differentiation must be based on a prohibited or analogous ground; and d) the differentiation must be unreasonable or unjustifiable. 57. The duty of the person claiming discrimination is to prove the first two elements of discrimination, thus, that at least two persons who are in an analogous position have been treated differently and in a manner that materially affects the position of either of them. The defendant must then prove that the differential treatment was not based on a prohibited or analogous ground and/or that it is justifiable. See, ANE Sakala v The Registered Trustees of the Designated Schools Board, Civil Cause Number 2652 of 1999 (ANE Sakala Case). 58. Thus, where it is proven that two people are objectively speaking in an analogous situation, discrimination should be presumed unless the defendant demonstrates that there is a justifiable reason for the differential treatment and that the stated reason is not related to a prohibited or analogous ground. 59. What constitutes ‘being in an analogous situation or position?’ In the ANE Sakala Case, the plaintiff was employed by the Designated Schools Board as a bursar. The Board then decided to devolve the school. In its resolution, the Board decided to relocate secretariat staff and pay them terminal benefits. However, when calculating terminal benefits, the Board used a formula for the plaintiff, a contract employee, which was different to other employees who Page 22 of 45