violation of rights in the Charter but from other historical factors over which the Government had no control. 92. The Respondent State further argues that it was precisely to prevent any distinction between the two categories of civil servant that the Government acted expeditiously by promulgating Proclamation 1 of 1994, to amend- Proclamation 9 of 1993 and of Government Notice 3 of I994, to implement and give retrospective effect to the Second Privatization Scheme with its 75% funding basis, which formed the basis for the recovery from the civil servants who participated in the First Privatization Scheme the difference between the 91% payments they received and the 75% of the second scheme. The Respondent State avers that the second privatization scheme, in which the Complainants participated, was therefore not discriminatory at all, but aimed to treat all participants in both schemes equally on the basis of actuarial facts. 93. The Respondent State further argues that Venda civil servants, of whom the Complainants form part, willingly participated in the privatisation of the Venda Funds in order to prevent any prejudice to themselves upon the re- incorporation of Venda into South Africa. These civil servants themselves formed a Coalition that protested against the dangers inherent to their interest in the calculations on which the first pension fund was based. In order to address the possible prejudice to their interests, they negotiated with the Government and were represented at all times and on an equal basis in the negotiations with the Venda Government through the Crisis Committee which agreed on the second privatisation scheme and its actuarial basis of 75% for calculating their pension benefits. 94. For the above reason, the Respondent State argues that the Complainants were therefore part and parcel of the decision that resulted in them getting a 75% pay-out. The Respondent State maintains that the situation in which the Complainants find themselves results from the exercise of a free choice, which in terms of international human rights jurisprudence cannot form the basis of discrimination. To support its argument, the Respondent State cites the cases of Young v Australia 19 and X v Colombia .20 95. The Respondent State explains that the Government acted speedily and expeditiously to ensure that no discrimination takes place between the beneficiaries of the first and second privatization schemes, by giving the second privatization scheme retrospective effect and acting to recover overpayments made to beneficiaries of the first privatization scheme in order to protect the interests of the beneficiaries of the second privatization scheme. 96. The Respondent State explains further that it never acted in a discriminatory way against the participants in the second privatisation scheme; in fact, it acted with a view to prevent any discrimination; there was no discriminatory act by the Government and even if the distinction between the 91% and 75% benefits are taken into account, such factual distinction that may have arisen, was the result of developments outside the control of the Government and can therefore be justified. The Respondent State therefore concludes that the alleged violation of the right to non-discrimination in the African Charter has not been substantiated. 97. It is further pointed out by the Respondent State that besides the fact that discrimination cannot be based on the facts of the case and the actions by the Venda Government, the Communication fails to take into account that the right not to be discriminated against, though a critical and vital right in the Charter, is a right that is to be enjoyed in relation to other rights. It is argued that the Charter does not provide a general non-discrimination clause and a Complainant must show that he or she has been discriminated against with respect to the enjoyment of rights in the Charter. This, the Respondent State contends, the Complainants have not, and cannot do. 98. The Respondent State also points out that there is a fundamental defect in the Complainants case in that they appear to ignore the fact that they have been treated differently on account of financial decisions that they themselves made. It is further pointed out that in t he Communication and t he various domestic court challenges; the privatisation scheme was not forced on any Venda government employees. Rather, the affected Government employees elected voluntarily to have their pension funds privatised. It is argued that the decision to privatise was made on financial reasons, in particular the decision to privatise was based on the understanding that the South African scheme was under-resourced and that come reintegration into the democratic South Africa, they would be better off. The Respondent States concludes that the ground for differentiation is, therefore, a financial decision made by the Complainants and not race, not sex, not religion or any other ground prohibited by Article 2 of the Charter, but the result of the subsequent calculation of pension benefits by an independent contractor. 99. It is also argued by the Respondent State that at the heart of this Communication is the assumption that the calculation enacted by Government Notice 3 of 1994 and the Presidential Proclamation of 1995, was actuarially incorrect. It is further argued that it has also not been intimated by the Complainants how the 10