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14
TOWARDS A
SUBSTANTIVE RIGHT
TO EQUALITY
Cathi Albertyn & Beth Goldblatt
1 Introduction
This paper examines the development of the Constitutional Court’s
equality jurisprudence over the last decade — a fascinating journey
that has established South Africa as a leading jurisdiction in this
domain. The first cases adumbrated a detailed equality test that
reflects a mature approach to this complex right. A large number of
cases have reached the Court: most rationality review challenges
under FC section 9(1) have failed; and most unfair discrimination
challenges under FC section 9(3) have succeeded.
As more and more disadvantaged claimants and groups are
reaching court, FC section 9(3)’s value-based fairness analysis is
becoming more historically and contextually sophisticated. There are,
of course, some notable exceptions. This chapter will focus on the
following key areas of equality jurisprudence: the role of
constitutional values in interpreting the equality right; an evaluation
of the unfair discrimination jurisprudence; and the nature and
relationship of the different components of the equality right, as well
as the limitations clause.
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