Expanding equality

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Saras Jagwanth
• Pages: 131-148
• Citation: 2005 Acta Juridica 131

Expanding equality

SARAS JAGWANTH*

University of Cape Town

I INTRODUCTION

Equality occupies a central and overarching place in the South African

legal order.

1

It is a free-standing right under s 9 of the Constitution as

well as a foundational value in our constitutional dispensation.

2

This

chapter examines the use of equality as both a right and value in cases

other than direct challenges to discriminatory law or conduct, and

demonstrates the importance of expanding the role and reach of equality

to all cases in which groups suffering disadvantage are affected, including

in non-constitutional matters. The duty to promote equality, a relatively

new development in equality law, is also examined in the light of its

potential for social change and transformation. While the arguments

presented in this chapter may be relevant for all disadvantaged groups, it

focuses mainly on sex and gender equality cases and the achievement of

substantive equality for women.

Equality as a justiciable right confers legitimate constitutional entitle-

ments and corresponding obligations, and may be directly relied upon to

found a cause of action in the courts against duty-bearers. Equality as a

value may be used by courts even where the right is not invoked,

allowing substantive equality principles to form the lens through which

application of the law takes place. In Van Heerden Moseneke J noted that

‘the achievement of equality is not only a guaranteed and justiciable right

in our Bill of Rights but also a core and foundational value; a standard

which must inform all law and against which all law must be tested for

constitutional consonance.’

3

Equality as both a right and value can play a

number of different roles in the process of constitutional interpretation in

the courts. Anti-discrimination litigation in the form of direct challenges

to discriminatory legislation or conduct has traditionally been the most

* BA LLB LLM (Natal);Associate Professor, University of Cape Town.

1

The centrality of the right to equality has been recognised by the Constitutional Court in

many of its judgments. See for example Fraser v Children’s Court, Pretoria North 1997 (2) BCLR

153 (CC), 1997 (2) SA 261 (CC) in which Mohamed J noted that ‘[t]here can be no doubt that

the guarantee of equality lies at the very heart of the Constitution. It permeates and def‌ines the

very ethos upon which the Constitution is premised’ (para 20), and President of the Republic of

South Africa v Hugo 1997 (6) BCLR 708 (CC), 1997 (4) SA1 (CC) in which Kriegler J held that

‘in the light of our own particular history, and our vision for the future, a Constitution was

written with equality at its centre’ (para 74). More recently,Moseneke J in Minister of Finance v

Van Heerden 2004 (11) BCLR 1125 (CC), 2004 (6) SA 121 (CC) pronounced that ‘the

achievement of equality goes to the bedrock of our constitutional architecture’ (para 22).

2

Sections 1(a) and 7(1) of the Constitution.

3

VanHeerden (n 1) para 22.

131

2005 Acta Juridica 131

© Juta and Company (Pty) Ltd

common way in which the equality right has been used in the courts.

4

However equality principles may also be effectively used in cases where

the right is not directly invoked, including in the interpretation of other

rights, the interpretation of legislation and the development of the

common law and customary law. An expanded role for equality makes

the substantive equality principles developed by the Constitutional Court

relevant beyond the content and ambit of the right itself and the next part

of this chapter brief‌ly describes aspects of the substantive equality

jurisprudence in this regard.

II SUBSTANTIVE EQUALITY: THE BACKDROP FOR

EXPANSION

The approach to the right to equality in s 9 of the Constitution ‘goes

beyond formal equality and non-discrimination which requires identical

treatment, whatever the starting point or impact’.

5

The substantive

equality approach developed by the Constitutional Court requires the

equality right to be applied in its social context, including the recognition

of past and existing social, political and economic disparities, and

incorporates the value of human dignity. It also places emphasis on the

4

The cases include: Brink v Kitshoff 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC);

Fraser v Children’s Court, Pretoria North (n 1); President of the Republic of South Africa v Hugo (n 1);

Prinsloo v Van Der Linde 1997 (6) BCLR 759 (CC), 1997 (3) SA 1012 (CC); Harksen v Lane

1997 (11) BCLR 1489 (CC), 1998 (1) SA 300 (CC); Larbi-Odam v MEC for Education, North

West Province 1997 (12) 1655 (CC), 1997 (12) BCLR 1655; East Zulu Motors v Empangeni/

Ngwelezane Transitional Local Council 1998 (1) BCLR 1 (CC), 1998 (2) SA 61 (CC); City

Council of Pretoria v Walker1998 (3) BCLR 752 (CC), 1998 (2) SA 363 (CC); National Coalition

of Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC), 1999 (1) SA 6 (CC);

Hoffmann v South African Airways 2000 (11) BCLR 1211 (CC), 2001 (1) SA1 (CC); Moseneke v

Master of the High Court 2001 (2) BCLR 103 (CC), 2001 (2) SA 18 (CC); National Coalition of

Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC), 2000 (2) SA 1

(CC); Van Der Walt v Metcash 2002 (5) BCLR 454 (CC), 2002 (4) SA 317 (CC); Satchwell v

President of the Republic of South Africa 2002 (9) BCLR 986 (CC), 2002 (6) SA1 (CC); Du Toit v

Minister of Welfare and Population Development 2002 (10) BCLR 1006 (CC), 2003 (2) SA198

(CC); S v Jordan 2002(11) BCLR 1117 (CC), 2002 (6) SA 642 (CC); J and B v DirectorGeneral,

Department of Home Affairs 2003 (5) BCLR 463 (CC), 2003 (5) SA 621 (CC); Satchwell v

President of the Republic of South Africa 2004 (1) BCLR 1 (CC), 2003 (4) SA 266 (CC); Khosa v

Minister of Social Development 2004 (6) BCLR 569 (CC), 2004 (6) SA 505 (CC); Minister of

Finance v VanHeerden note 1; Bhe v Magistrate, Khayelitsha 2005 (1) BCLR 1 (CC), 2005 (1) SA

580 (CC); Mabaso v Law Society of the Northern Provinces 2005 (2) SA 117 (CC); Volks NO v

Robinson 2005 (5) BCLR 446 (CC). These are cases in which the Constitutional Court directly

applied s 9 of the Constitution (and s 8 of the interim Constitution). There are however, many

other rights which can and should be used for the attainment of substantive equality for

vulnerable groups, including both civil and political rights and the socio-economic rights. The

latter category is particularly important for members of groups such as women suffering a

greater degree of socio-economic disadvantage. Thus, cases such as Republic of South Africa v

Grootboom 2000 (11) BCLR 1169(CC), 2001 (1) SA 46 (CC) and Minister of Health v Treatment

Action Campaign 2002 (10) BCLR 1033 (CC), 2002 (5) SA 721 (CC) are also signif‌icant to

those seeking to advance gender equality. Both cases highlighted the plight of the most

vulnerable groups in society, particularly women and children.

5

VanHeerden (n 1) para 26.

132 ADVANCING WOMEN’S RIGHTS

© Juta and Company (Pty) Ltd