Equality for people with disabilities: the limits of the Employment Equity Act of 1998

• Jurisdiction: South Africa
• Pages: 186-193
• Published date: 30 August 2019
• Date: 30 August 2019
• Citation: 2001 Acta Juridica 186
• Author: Charles Ngwena

Equality for people with disabilities:

the limits of the Employment Equity

Act of 1998

CHARLES NGWENA*

Vista University

I INTRODUCTION

Judicial pronouncements in the Constitutional Court have made it

abundantly clear that under the South African Constitution,

1

equality

takes the form of substantive equality as opposed to mere formal

equality. In National Coalition for Gay and Lesbian Equality v Minister

of Justice, for example, Ackermann J said this about the equality clause:

‘Section 9 of the Constitution, like its predecessor, clearly contemplates

both substantive and remedial equality. Substantive equality is envisaged

when section 9(2) unequivocally asserts that equality includes ‘‘the full and

equal enjoyment of all rights and freedoms.’’ ’

2

It is thus paramount to ensure that the principles of ‘full and equal

enjoyment’ of all human rights and freedoms and non-discrimination

that are enshrined in the Bill of Rights are genuinely extended to all

individuals and groups, including people with disabilities. It is not

insignificant that s 9 of the Constitution – the equality clause – ex-

plicitly recognizes disability as one of the grounds for which protec-

tion against unfair discrimination is accorded and affirmative action is

mandated. In contradistinction to other historically marginalised

groups such as black people and women, however, people with dis-

abilities present a unique challenge to the formulation and implemen-

tation of equality as a legal and political construct in the South Africa.

The treatment of people with disabilities in the workplace, especially,

exposes in stark terms, the limits of the Employment Equity Act

3

as a

juridical instrument for ensuring equality of opportunities, and ulti-

mately, substantive equality in the workplace.

* LLB LLM (Wales); Associate Professor Faculty of Law, Vista University, Bloemfontein

Campus; Centre for Health Systems & Development, University of the Free State.

1

The Constitution of the Republic of South Africa Act 108 of 1996.

2

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA at para 62. See

also pronouncements to this effect in Brink v Kitshoff 1996 (6) BCLR 752 (CC); President of the

Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC); Harksen v Lane 1997 (11)

BCLR 1489; and City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC).

3

Act 55 of 1998.

186

2001 Acta Juridica 186

© Juta and Company (Pty) Ltd