Equality beyond dignity: Multi-dimensional equality and Justice Langa’s judgments

• Jurisdiction: South Africa
• Citation: 2015 Acta Juridica 430
• Date: 15 August 2019
• Author: Catherine Albertyn
• Published date: 15 August 2019
• Pages: 430-455

Equality beyond dignity: Multi-dimensional

equality and Justice Langa’s judgments

CATHERINEALBERTYN* AND SANDRA FREDMAN

†

The tendency for South African equality jurisprudence to reduce equality to a

single value, namely dignity, has been much debated, especially around the

relationship of dignity to disadvantage. In this article we argue for a multi-

dimensional idea of equality that moves beyond a dignity/disadvantage

paradigm to enable a fuller exploration of the complex harms and injuries that

underlie equality claims, and greater elucidation of the multiple principles and

purposes of equality.In particular, we argue that substantive equality should be

understood in terms of a four-dimensional framework, which aims at address-

ing stigma, stereotyping, prejudice and violence; redressing socio-economic

disadvantage; facilitating participation; and valuing and accommodating differ-

ence through structural change. We suggest that this enables a better explora-

tion of the different principles that underlie equality and an open discussion of

complementarities and tensions between them. Weexplore the benef‌its of this

approach through an evaluation of three equality cases in which Justice Langa

delivered the leading judgments. Although we do not claim that he fully

adopted such an approach, we engage Justice Langa’s philosophy on equality

as it emerges from these judgments, and evaluate the extent to which we can

develop from this a more fully-f‌ledged understanding of equality and its

underlying values in the South African Constitution.

I INTRODUCTION

In Brink v Kitshoff, the f‌irst equality case of the South African Constitu-

tional Court, O’Regan J, writing for the court, identif‌ied the purpose of

the constitutional right to equality as remedying patterns of disadvantage.

1

However, in a trio of cases that followed this, the court effectively placed

dignity at the centre of the equality right, noting that its purpose was to

accord equal dignity and equal human worth to all human beings,

regardless of their membership of particular groups. This required that

everyone be treated with equal concern and respect. This elevation of a

largely undef‌ined, and abstract notion of dignity as human worth, and the

apparent displacement of other purposes, especially that of remedying

* Professor of Law, University of the Witwatersrand, Johannesburg; Attorney in the High

Court of SouthAfrica; BA LLB (Cape Town) MPhil PhD (Cantab).

†

Rhodes Professor of Laws of the British Commonwealth and the United States, Univer-

sity of Oxford; BA(Witwatersrand) MA BCL (Oxon) FBA.

1

1996 (4) SA197 (CC).

430

2015 Acta Juridica 430

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systemic disadvantage, generated signif‌icant debate about the def‌inition

and application of the right.

2

This continued commitment to dignity as the core of the equality right

raises several questions: Can dignity act as a placeholder for all the

inequalities and harms that the idea of substantive equality seeks to

address? Is there no place for other values and principles in evaluating

whether the equality right has been violated? Subsuming too much under

the heading of dignity risks obscuring the different values and mediating

principles that underlie equality and are visible, although not always

explicit, in the court’s jurisprudence. The core notion of dignity can be

seen to address the harms of stigma, humiliation, stereotyping and

prejudice. However, the idea of substantive equality clearly encompasses

other values that are not reducible to dignity, including redressing social

and economic disadvantage, promoting voice and participation, and

aff‌irming difference through structural and institutional change.

3

Even

more problematically, the sole reliance on dignity gives little guidance on

how to address tensions or conf‌licts between dignity and the other core

values of substantive equality, and the different dimensions of (in)equality

that they might represent.

In this article, we aim to move beyond the attempt to reduce equality

to a single value. The elevation of dignity in South Africa has often meant

that disadvantage is not fully explored, if at all, and that issues of

difference, diversity and inclusion are often viewed only through the

prism of dignity’s relation to individual identity formation and self-

realisation (rather than their relationship to more systemic disadvantage

and structural inequality).

4

Instead, we argue for a multi-dimensional

understanding of equality that enables a fuller grasp of the different facets

of inequality which the right to substantive equality aims to redress.

Dignity on its own could be criticised for being too individualistic,

and for privileging stigma harms over socio-economic disadvantage.

However, these potential defects can be mitigated if dignity (understood

as redressing stigma, stereotyping, and prejudice) is buttressed by other

values, such as redressing socio-economic disadvantage, facilitating

participation, and accommodating difference through structural change.

2

C Albertyn & B Goldblatt ‘Facing the challenge of transformation: Diff‌iculties in the

development of an indigenous jurisprudence of equality’ (1998) 14 SAJHR 248; DM Davis

‘Equality: The majesty of legoland jurisprudence’(1999) 116 SALJ 398; S Cowen ‘Can dignity

guide our equality jurisprudence?’(2001) 17 SAJHR 34.

3

For different iterations of the need to recognise different principles, dimensions and values

underlying the equality right see:Albertyn & Goldblatt (n 2); S Fredman Discrimination Law 2ed

(2011) 8–33; S Fredman ‘Redistribution and recognition: Reconciling inequalities’ (2007) 23

SAJHR 214; H Botha ‘Equality,plurality and structural power ’(2009) 25 SAJHR 1; C Albertyn

‘Constitutional equality in South Africa’ in O Dupper & C Garbers (eds) Equality in the

Workplace:Ref‌lections from South Africa and Beyond (2009) 75.

4

Albertyn & Goldblatt (n 2).

431

EQUALITY BEYOND DIGNITY

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